WHEN LIVING AS HUSBAND AND WIFE ISN'T
ENOUGH: REEVALUATING DILLON'S CLOSE
RELATIONSHIP TEST IN LIGHT OF DUNPHY v.
GREGOR
David Sampedro*
I. INTRODUCTION
Historically, American courts were slow to recognize the independent legal interest an individual has in peace of mind.1 Courts
espoused various policies to justify their slow recognition of emotional distress.2 Initially, courts recognized emotional distress3 as an
element of damages only when it accompanied another independently recognized cause of action.4 Eventually, the judiciary reluc
* David Sampedro received his B.S. in Political Science from Florida State University in 1992, and J.D. from Stetson University College of Law, cum laude, in 1995
where he was a member of the Stetson Law Review. He is currently an associate with
the firm of Anania, Bandklayder & Blackwell in Miami.
1. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 12, at
54–55 (5th ed. 1984); see also Virginia E. Nolan & Edmund Ursin, Negligent Infliction of
Emotional Distress: Coherence Emerging from Chaos, 33 HASTINGS L.J. 583, 604 (1982);
Marjorie A. Rasmussen, Comment, Right of an Unmarried Cohabitant to an Action for
Negligent Infliction of Emotional Distress in California, 15 PAC. L.J. 925, 928–29 (1984).
See infra note 3 for a definition of emotional distress. But see infra notes 33–36, 46–48
and accompanying text for examples of early case law recognizing emotional distress.
2. See infra notes 24–30 and accompanying text.
3. “Emotional distress” may be defined as:
[M]ental anguish: When connected with a physical injury, this term includes
both the resultant mental sensation of pain and also the accompanying feelings
of distress, fright, and anxiety. . . . In other connections, and as . . . an element of damages, it includes the mental suffering resulting from the excitation
of the more poignant and painful emotions, such as grief, severe disappointment, indignation, wounded pride, shame, public humiliation, despair, etc.
BLACK'S LAW DICTIONARY 985–86 (6th ed. 1990).
The Restatement defines emotional distress as “mental suffering, mental anguish,
[and] mental or nervous shock.” RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (1965).
However, this Article will use the phrase “emotional distress” as courts have tended to
employ that term most frequently. “Fright, humiliation, indignation, or anger, standing
alone, would not constitute the kind of legal damage needed to support an action” for
emotional distress. F. HARPER, ET AL., THE LAW OF TORTS § 18.4, at 681–83 (2d ed. 1986).
4. See, e.g., Southern Express Co. v. Byers, 240 U.S. 612, 615 (1916) (finding great
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tantly extended protection to those who suffered intentional infliction of emotional distress.5 By the end of World War II, courts had
gradually extended liability to include direct victims6 of emotional
distress as well as bystander victims.7
The California Supreme Court took an extraordinarily important role in defining the parameters of bystander recovery for emotional distress claims in Dillon v. Legg.8 Dillon retreated from the
zone of danger rule9 advocated in Amaya v. Home Ice, Fuel & Supply
Co.,10 and instead, established a three-pronged test based upon
weight of authority precludes recovery in actions claiming mental suffering alone) (citations omitted). See also Lynch v. Knight, 11 Eng. Rep. 854, 863 (1861); RESTATEMENT OF
TORTS § 46 (1934) (peace of mind alone not sufficient to state cause of action); Hub Harrington, Recent Decision, Torts — Alabama Supreme Court Recognizes Intentional Infliction of Severe Emotional Distress as an Independent Cause of Action, 12 CUMB. L. REV.
525, 530–32 nn.42–52 (1982) (giving examples of case law requiring recovery of emotional
distress to be based upon an independent tort). This early dependency induced legal
scholars to refer to emotional distress as a “parasitic” cause of action. KEETON ET AL.,
supra note 1, at 57.
5. See infra notes 24–41 and accompanying text for a discussion of intentional infliction of emotional distress.
6. The author uses the term “direct victim” throughout this Article to refer to the
primary victim whose physical injury results from the defendant's culpable conduct. Depending on the circumstances, the direct victim may also seek recovery for her psychological injuries. See Julie A. Greenberg, Negligent Infliction of Emotional Distress: A
Proposal for a Consistent Theory of Tort Recovery for Bystander and Direct Victims, 19
PEPP. L. REV. 1283, 1285–91 (1992) for a discussion of the history of the direct victim
theory.
7. “Bystander” liability refers to “claims that arise after the plaintiff witnesses the
harm caused to a third person by the defendant.” John D. Burley, Comment, Dillon Revisited: Toward a Better Paradigm for Bystander Cases, 43 OHIO ST. L.J. 931, n.2 (1982).
See generally Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise
Possible?, 67 WASH. L. REV. 1, 2–3 (1992), for an analysis of the direct victim/bystander
dichotomy; Greenberg, supra note 6.
8. 441 P.2d 912 (Cal. 1968). See KEETON ET AL., supra note 1, § 54, at 366. For a
full discussion of Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968), overruling Amaya v.
Home Ice, Fuel & Supply Co., 379 P.2d 513 (Cal. 1963), see infra notes 72–86 and accompanying text. Courts, as well as legal scholars, recognize Dillon as the seminal case
involving bystander liability. Leong v. Takasaki, 520 P.2d 758, 763 (Haw. 1974); KEETON
ET AL., supra note 1, § 54, at 366.
The author notes that other states, particularly New York, also made great
strides in accepting peace of mind as a recognized interest. See, e.g., Bovsun v. Sanperi,
461 N.E.2d 843 (N.Y. 1984); Battalla v. State, 176 N.E.2d 729 (N.Y. 1961); Ferrara v.
Galluchio, 152 N.E.2d 249 (N.Y. 1958). However, this Article will, for the most part,
discuss California case law as the most influential in the country.
9. Dillon, 441 P.2d at 915 (finding that the zone-of-danger is a fallacy and hopelessly artificial). See infra notes 57–69 and accompanying text for a discussion regarding
the zone of danger rule.
10. 379 P.2d 513 (Cal. 1963), overruled by Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
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foreseeability. Under the Dillon test, the dispositive factors are
whether: 1) the plaintiff was at or near the scene of the accident; 2)
the plaintiff's shock resulted from a contemporaneous and sensory
observance of the accident; and 3) the plaintiff and the victim had a
close relationship.11 Courts in other jurisdictions quickly adopted
Dillon's foreseeability analysis to allow claims by unrelated individuals.12 In 1988, the California Supreme Court used Elden v.
Sheldon13 as a catalyst to modify its landmark decision.14 In order to
prevent the extension of liability, the court held that a plaintiff who
witnessed the injury of a loved one could not recover for negligent
infliction of emotional distress if the two were unmarried and only
cohabited.15 The court's decision did not turn on the fact that an
unmarried cohabitant's injuries were unforeseeable.16 Instead, the
court cited society's overriding interest in certainty and structure in
the law as the basis for limiting a cognizable cause of action under
Dillon to married individuals.17
Recently, the New Jersey Supreme Court presented the legal
community with its own progressive approach to defining a “close
relationship” under a Dillon analysis.18 The importance and significance of Dunphy v. Gregor II is not limited to the state of New Jersey. In the twenty-eight years since the California Supreme Court
decided Dillon v. Legg,19 a majority of states have adopted some
form of its foreseeability analysis.20 Similarly, California's decision
in Elden has surfaced as the seminal case restricting unmarried
11. Dillon, 441 P.2d at 920. The Dillon court emphasized that courts should apply
this flexible test on a case-by-case basis to determine whether it was reasonably foreseeable that the defendant owed a duty of care to the bystander plaintiff. Id. at 922.
12. See infra note 90 and accompanying text.
13. 758 P.2d 582 (Cal. 1988).
14. Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
15. Elden, 758 P.2d at 586–88.
16. Id. at 586. See Dean H. Lefler, Note, Elden v. Sheldon — Should Policy Outweigh Foreseeability?, 1989 B.Y.U. L. REV. 977, 981–83 (1989) (noting that the California
Supreme Court based its decision on what it perceived to be overriding policy reasons,
such as the state's interest in marriage, judicial economy, and limiting liability, rather
than foreseeability).
17. Ellis Horvitz, An Analysis of Recent Supreme Court Developments in Tort and
Insurance Law: The Common-Law Tradition, 26 LOY. L.A. L. REV. 1145, 1155 (1993).
18. Dunphy v. Gregor II, 642 A.2d 372 (N.J. 1994). For the purposes of this Article,
the appellate court's decision will be referenced as Dunphy v. Gregor I and the New
Jersey Supreme Court's opinion as Dunphy v. Gregor II.
19. 441 P.2d 912 (Cal. 1968).
20. See infra note 87 and accompanying text.
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cohabitants from successful recovery under a Dillon analysis.
Dunphy II is the first case which criticizes Elden's reasoning and
conclusion. It will provide other states with an alternative to stagnant California common-law and will more closely reflect contemporary society.21
This Article will first briefly explain the development and rationale of emotional distress. The discussion then explores the expansion of recovery for free standing, negligently inflicted emotional
distress and the eventual creation of the bystander rule. Next, this
Article will review the extent to which different states have interpreted bystander liability and their willingness to expand the law in
that area, with particular emphasis on the California Supreme
Court's landmark decisions in Dillon v. Legg22 and Elden v.
Sheldon.23 The discussion will then turn to a summary of Dunphy's
facts and a critical analysis of the majority and dissenting opinions,
which among other things will suggest that: 1) although a familial
relationship by blood or marriage may be absent, individuals who
have a stable, enduring, substantial, and mutually supportive relationship have a protected interest which the law should recognize;
and 2) the New Jersey Supreme Court reached the proper conclusion
when it rejected a bright-line distinction between married and unmarried individuals in favor of a case-by-case analysis of what constitutes a close, familial relationship. This Article also will propose
an alternative approach for courts unwilling to equate the relationship between the two groups, which will preserve the ability of unmarried cohabitants to recover for negligent infliction of emotional
distress. Finally, this Article will conclude that the factors set forth
in Dunphy or those suggested by the author, which an unmarried cohabitant must meet to prevail in a bystander action, sufficiently
define the parameters of the cause of action to permit a trier of fact
to decide the issue.
21. Accord Butcher v. Superior Court of Orange County, 139 Cal. App. 3d 58,
62–64 (1983) (finding that unmarried cohabitant may recover for loss of consortium when
nonmarital relationship is characterized as stable and significant), overruled by Elden v.
Sheldon, 758 P.2d 582 (Cal. 1988). See infra notes 109–60 and accompanying text for a
discussion of Dunphy II.
22. 441 P.2d 912 (Cal. 1968).
23. 758 P.2d 582 (Cal. 1988). See infra note 87 and accompanying text for a discussion of how a majority of courts have adopted some form of Dillon's reasoning.
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II. THE HISTORY OF EMOTIONAL DISTRESS
A. The First Steps to Recognition: Intentional Infliction
of Emotional Distress
The judiciary's initial reluctance and, indeed, hostility toward
almost any type of recovery for emotional distress24 stemmed from
several social policy reasons.25 First, the judiciary found emotional
distress cases to be too speculative as the injuries often were temporary and trivial.26 Second, it was concerned about the sometimes
tenuous causal relationship between the defendant's negligence and
the victim's emotional distress.27 Third, the judiciary feared that it
would be besieged with a flood of frivolous claims.28 Courts also cited
24. See supra notes 1, 3 and accompanying text. But see infra notes 33–36 and accompanying text for a discussion of traditionally recognized exceptions to this early common law rule. See also infra notes 24–108 and accompanying text for a brief discussion
of how courts gradually expanded the law.
25. See generally KEETON ET AL., supra note 1, § 54 at 360–61.
26. Id.; STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 16:1, at 937
(1987). See also Daniel Givelber, The Right to Minimum Social Decency and the Limits
of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct,
82 COLUM. L. REV. 42, 44–45 (1982) (discussing the concerns with fraudulent emotional
injuries and the difficulty in separating serious emotional injury from trite injuries);
Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L.
REV. 1033, 1035 (1936) (indicating courts' aversion in recognizing others' “bad manners”
and everyday annoyances of living in society).
27. See, e.g., Mitchell v. Rochester Ry., 45 N.E. 354, 355 (N.Y. 1896), overruled by
Battalla v. State, 176 N.E.2d 729 (N.Y. 1961); Chittick v. Philadelphia Rapid Transit Co.,
73 A. 4, 5 (Pa. 1909); Victorian Rys. Comm'rs v. Coultas, 13 App. Cas. 222 (P.C. 1888).
As a result, even when courts found a defendant's conduct to be negligent, she would not
be held liable for the ensuing emotional distress. See Mitchell, 45 N.E. at 354 (holding
that although defendant was negligent, public policy justified precluding plaintiff from
recovering for her emotional distress).
28. Mitchell, 45 N.E. at 354; see, e.g., Kraus v. Consolidated Rail Corp., 723 F.
Supp. 1073, 1090 (E.D. Pa. 1989); Payton v. Abbott Labs, 437 N.E.2d 171, 178 (Mass.
1982); Lynch v. Knight, 11 Eng. Rep. 854 (1861); see also Douglas B. Marlowe, Comment, Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective Versus Subjective Indices of
Distress, 33 VILL. L. REV. 781, 784 (1988). Other courts simply felt that notwithstanding
fraud, recognizing emotional distress would lead to an extraordinary increase in litigation. See, e.g., Kraus, 723 F. Supp. at 1090; Gates v. Richardson, 719 P.2d 193, 197
(Wyo. 1986); Spade v. Lynn & Boston R.R., 47 N.E. 88, 89 (Mass. 1897), overruled by
Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978).
However, subsequent advancements in various fields of science have dispelled
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the lack of legal precedent as a justification for not recognizing such
a cause of action.29 Finally, the judiciary feared that the recognition
of emotional distress would expose defendants to unlimited liability.30
Ensuing decisions criticized the arbitrary bar of all actions for
emotional distress because of the judiciary's fear that some fraudulent claims may succeed.31 These courts reasoned that the interests
of administrative convenience should not supersede those of a meritorious claim. Beginning in the nineteenth century, reform oriented
scholars suggested that the law should allow compensation in areas
other than those involving damage to property or bodily harm.32
Gradually, courts used the common law torts of assault,33 seduction,34 battery,35 and false imprisonment36 as a catalyst in recogniz-
many of the fears which the above mentioned policy reasons invoked. Jarchow v.
Transamerica Title Ins. Co., 48 Cal. App. 3d 917 (1975) (noting that advancements in
the field of psychology have established emotional distress as a measurable injury). See
generally Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, Part II (1992), for an
excellent discussion of the advancements in science, technology, and epistemology and
how they relate to emotional distress.
29. Lehman v. Brooklyn City R.R., 53 N.Y. Sup. Ct. 355, 356 (1888); Victorian, 13
App. Cas. at 225.
30. See KEETON ET AL., supra note 1, § 54, at 361. Prosser notes that courts generally perceive that imposing a heavy duty on a defendant for such a remote, negligent act
would be unfair and disproportionately burdensome. Id.; see also Kraus, 723 F. Supp. at
1090.
31. Jarchow, 48 Cal. App. 3d at 934; Tobin v. Grossman, 249 N.E.2d 419 (N.Y.
1969), overruled by Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984).
32. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV.
193 (1890). Brandeis and Warren suggested that a tort cause of action for invasion of
privacy could be construed through an interpretation of privacy-like interests in early
contract and intellectual property case law. Id. at 195, 219.
33. See, e.g., Kline v. Kline, 64 N.E. 9 (Ind. 1902) (defendant threatened to burn
down house and pointed a pistol at plaintiff); Trogdon v. Terry, 90 S.E. 583, 584 (N.C.
1916) (defendant forced plaintiff to sign paper as he threatened to “whip hell out of” him
with his walking stick); Allen v. Hannaford, 244 P. 700 (Wash. 1926) (defendant pointed
pistol at plaintiff and threatened to shoot him). Assault protects an individual's “interest
in freedom from apprehension of a harmful or offensive contact with [another] . . . person.” KEETON ET AL., supra note 1, § 10 at 43.
34. See, e.g., Anthony v. Norton, 56 P. 529 (Kan. 1899) (seduction of 25-year old
daughter); Haeissig v. Decker, 166 N.W. 1085 (Minn. 1918) (seduction of 22-year old
daughter).
35. See, e.g., Williams v. Underhill, 71 N.Y.S. 291 (1901) (defendant laid his “violent hands” upon plaintiff); Draper v. Baker, 21 N.W. 527 (Wis. 1884) (defendant spat in
plaintiff's face). Battery protects an individual's right to be free from “harmful or offensive contact.” KEETON ET AL., supra note 1, § 9 at 39.
36. See, e.g., Gadsen Gen. Hosp. v. Hamilton, 103 So. 553 (Ala. 1925) (wrongful
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ing intentional infliction of emotional distress.37
By the time the American Law Institute drafted the Restatement (Second) of Torts,38 jurisdictions had begun to recognize intentional infliction of emotional distress as an independent tort.39 Today, the majority of states recognize this tort as an independent
cause of action in one form or another.40 Nonetheless, bystanders
who claim intentional infliction of emotional distress continue to
have difficulty stating a cause of action. In fact, courts have tended
to limit liability in such circumstances to instances in which the
detention of patient in hospital for failure to pay bill); Fisher v. Rumler, 214 N.W. 310
(Mich. 1927) (police officers illegally entered home to conduct search and improperly detained plaintiff as she attempted to leave). False imprisonment protects an individual's
interest to be free “from restraint of movement.” KEETON ET AL., supra note 1, § 11, at
47.
37. At this time many courts still held that mere words, regardless of how threatening, violent, or outrageous, were insufficient to state a cause of action for intentional
infliction of emotional distress. See RESTATEMENT (SECOND) OF TORTS § 46 (1965). Cf.
Kramer v. Ricksmeier, 139 N.W. 1091 (Iowa 1913); Hixson v. Slocum, 161 S.W. 522 (Ky.
1913); Grayson v. St. Louis Transit Co., 71 S.W. 730 (Mo. Ct. App. 1903); State v. Daniel, 48 S.E. 544 (N.C. 1904); Brooker v. Silverthorne, 99 S.E. 350 (S.C. 1919).
38. RESTATEMENT (SECOND) OF TORTS § 46 (1965) (reversing the RESTATEMENT OF
TORTS § 46 (1934), which argued that intentional infliction of emotional distress should
not be recognized as an independent tort).
39. See, e.g., State Rubbish Collectors Ass'n v. Siliznoff, 240 P.2d 282, 286 (Cal.
1952) (recognizing a cause of action where a union member used threats to extort money
from a non-union plaintiff); Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277,
278–79 (Fla. 1985) (adopting the standard set out in section 46 of the Restatement);
Dunn v. Western Union Tel. Co., 59 S.E. 189 (Ga. Ct. App. 1907) (employee insulted
customer by stating “go to hell with your God damn message”); Wilkonson v. Downtown,
2 Q.B. 57, 57 (1897) (practical joker intentionally inflicted emotional distress by telling
plaintiff that her husband had been in a serious accident and was lying in the street
with two broken legs).
The Restatement (Second) of Torts § 46 confines its definition of intentional infliction of emotional distress to intentional acts which are “extreme and outrageous” and
cause “severe emotional distress.” RESTATEMENT (SECOND) OF TORTS § 46 (1965). Jurisdictions which have adopted this approach will not find liability unless the defendant's conduct is “extreme and outrageous.” See, e.g., Wiehe v. Kukal, 592 P.2d 860, 863–64 (Kan.
1979) (attacking neighbor with pitchfork not found to be “extreme and outrageous” conduct). Thus, although an individual may intentionally inflict emotional distress, a court
following the Restatement would not find her liable if the conduct was not “extreme and
outrageous.” See Paul V. Calandrella, Note, Safe Haven for a Troubled Tort: A Return to
the Zone of Danger for the Negligent Infliction of Emotional Distress, 26 SUFFOLK U. L.
REV. 79, 82 (1992). When the intentional conduct is directed at a third person not related to the actor, such emotional distress must result in “bodily harm.” RESTATEMENT
(SECOND) OF TORTS § 46 (1965).
40. See Givelber, supra note 26, at 43–44 n.9 (identifying case law which has
adopted the definition of the Restatement or some variation thereof).
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tortfeasor was aware that the bystander was present.41
B. The Development of Negligent Infliction
of Emotional Distress
Where an actor's intentional actions failed to meet the requirements of extreme outrage and moral dereliction in the context of
intentional infliction of emotional distress, courts were reluctant to
protect a plaintiff's independent interest in peace of mind through
the law of negligence.42 Thus, when an individual suffered severe
emotional distress alone, without an accompanying physical injury,43
and without an independent tort, courts held that there could be no
recovery.44 Despite the judiciary's aversion to recognizing emotional
distress as a negligence based tort,45 some historical situations existed in which courts did extend liability. Classic examples include
the mishandling of corpses,46 negligent communication concerning
41. See, e.g., Taylor v. Vallelunga, 339 P.2d 910, 911 (Cal. Ct. App. 1959) (precluding recovery, although plaintiff witnessed the beating of her father, because defendant
did not know of bystander plaintiff's presence). Prosser states that the court's reasoning
is that defendants cannot reasonably anticipate injury to an unknown bystander. K EETON
ET AL., supra note 1, § 12, at 65.
42. For a brief discussion of intentional infliction of emotional distress, as well as
the judiciary's aversion toward that cause of action see supra notes 24–41.
43. Interestingly, some courts treated shock to the nervous system as injury to the
body, instead of to the mind, thus satisfying the threshold prerequisite of accompanying
physical injury. See, e.g., Vanoni v. Western Airlines, 247 Cal. App. 2d 793 (1967).
44. See, e.g., Espinosa v. Beverly Hosp., 249 P.2d 843 (Cal. 1952) (denying recovery
when wrong newborn was given to mother); Sullivan v. H.P. Hood & Sons, Inc., 168
N.E.2d 80 (Mass. 1960) (ingestion of milk containing fecal matter of mouse); Tuttle v.
Meyer Dairy Prods. Co., 138 N.E.2d 429 (Ohio 1956) (plaintiff got a mouthful of broken
glass, without actually being cut, while eating cottage cheese); Seidenbach's Inc. v. Williams, 361 P.2d 185 (Okla. 1961) (failing to deliver bride's wedding gown before wedding).
45. See Kline v. Kline, 64 N.E. 9, 10 (Ind. 1902) (holding that current authority
prevents recovery for emotional distress in ordinary acts of negligence where there has
been no physical injury); Hickey v. Welch, 91 Mo. App. 4, 13 (1901) (finding that recovery is impermissible where act is negligent; however, it is permissible if the act is “willful, malicious or accompanied by circumstances of inhumanity and oppression . . . whether physical harm was done or not”).
46. See, e.g., St. Louis S.W. Ry. v. White, 91 S.W.2d 277 (Ark. 1936) (railroad company failed to properly and promptly gather remains of body after being run over);
Chelini v. Nieri, 196 P.2d 915 (Cal. 1948) (plaintiff suffered cerebral spasms and fainted
after discovering that mother's body had severely decomposed, although defendant assured otherwise); Allen v. Jones, 104 Cal. App. 3d 207 (1980) (plaintiff's deceased
brother's remains lost during transit); Carey v. Lima, Salmon & Tully Mortuary, 168
Cal. App. 2d 42 (1959) (deceased father's body arrived from shipment in a malodorous,
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the death of a relative,47 and common carriers' mistreatment of
passengers.48
The Impact Rule
decayed condition); Pollard v. Phelps, 193 S.E. 102 (Ga. Ct. App. 1937) (no attempt made
to stop for corpse and as a result severe mutilation and destruction of corpse occurred);
Morgan v. Richmond, 336 So. 2d 342 (La. Ct. App. 1976) (plaintiff's mother's body
wrongfully retained); Blanchard v. Brawley, 75 So. 2d 891 (La. Ct. App. 1954) (wanton
mutilation of decedent's corpse); Larson v. Chase, 50 N.W. 238 (Minn. 1891) (unlawful
dissection and mutilation of body); Muniz v. United Hosps. Med. Ctr. Presbyterian Hosp.,
379 A.2d 57 (N.J. Super. Ct. App. Div. 1977) (hospital's negligent handling of informing
parents of baby's death and its failure to locate body and confirm death for three weeks);
Torres v. State, 228 N.Y.S.2d 1005 (Ct. Cl. 1962) (state hospital's effort to notify family
of death was not reasonable as it occurred after unauthorized autopsy); Lamm v.
Shingleton, 55 S.E.2d 810 (N.C. 1949) (cemetery failed to secure vault allowing mud to
seep into casket); St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 650–54 (Tex. 1987)
(stillborn baby's body disposed of in unmarked, common grave without consent); Clark v.
Smith, 494 S.W.2d 192, 197 (Tex. Ct. App. 1973) (implied common law duty to embalm
body); Corrigal v. Ball & Dodd Funeral Home, Inc., 577 P.2d 580 (Wash. 1978) (cremated
remains of son's deceased body placed in cardboard box rather than urn). However, some
jurisdictions still require some form of malice or aggravating circumstances. See, e.g.,
Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950) (en banc) (allowing recovery where defendant took body of plaintiff's child without consent and refused to embalm and return
body until payment of excessive fee was made); Dunahoo v. Bess, 200 So. 541 (Fla. 1941)
(careless embalming of deceased's body did not rise to level necessary to recover for mental anguish); Chisum v. Behrens Mortuary, Inc., 283 N.W.2d 235 (S.D. 1979) (plaintiff
had burden of showing defendant mortician acted intentionally or maliciously rather
than negligently when interfering with custody of body and making unauthorized incision
in body).
47. See, e.g., Western Union Tel. Co. v. Redding, 129 So. 743 (Fla. 1930) (telegraph
company must have contemplated mental anguish); Johnson v. New York, 334 N.E.2d
590 (N.Y. 1975) (hospital falsely advised that plaintiff's mother had died); Western Union
Tel. Co. v. Shaw, 177 S.W.2d 52 (Tex. 1944) (company failed to transmit telegram notifying of grandchild's death); So Relle v. Western Union Tel. Co., 55 Tex. 308 (1881) (defendant failed to deliver message, causing plaintiff to miss his mother's funeral). But see
International Ocean Tel. Co. v. Saunders, 14 So. 148, 152 (Fla. 1893) (denying emotional
distress claim in negligent telegraph of death), overruled by Gilliam v. Stewart, 291 So.
2d 593 (Fla. 1974).
48. See, e.g., Gulf, C. & S. F. Ry. v. Luther, 90 S.W. 44 (Tex. Ct. App. 1905).
Scholars cite two different justifications for these common law exceptions. First, the special circumstances of these situations virtually guarantee genuine distress. KEETON ET
AL., supra note 1, § 54, at 362. Second, although these cases involve breach of an implied contract, the nature of the injuries resemble damages which are associated with
tort law. David Crump, Evaluating Independent Torts Based Upon “Intentional” or “Negligent” Infliction of Emotional Distress: How Can We Keep the Baby from Dissolving in the
Bath Water?, 34 ARIZ. L. REV. 439, 458 (1992). But see Richard N. Pearson, Liability to
Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of
Arbitrary Rules, 34 U. FLA. L. REV. 477, 513 n.198 (1982).
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By the middle of this century, courts had accepted a more liberal application of negligence principles to claims of emotional distress.49 Nonetheless, courts still imposed restrictions on recovery. At
first, courts limited recovery to individuals who showed some physical manifestation as a consequence of their emotional distress.50
Courts also found that recovery turned on whether the plaintiff suffered any physical contact at the time of the injury as a result of the
defendant's actions.51 The limited knowledge of psychology during
the early development of emotional distress motivated courts to
require physical impact as a prerequisite to recovery. This require-
49. See, e.g., Ferrara v. Galluchio, 152 N.E.2d 249, 252 (N.Y. 1958) (declaring
“[f]reedom from mental disturbance is now a protected interest in this State”).
50. See Webb v. Francis J. Lewald Coal Co., 4 P.2d 532, 533 (Cal. 1931) (holding
that physical injury caused by fear of a third party does not support a recovery), overruled by San Francisco v. Superior Court, 231 P.2d 26, 28 (Cal. 1951); Lindley v.
Knowlton, 176 P. 440, 441 (Cal. 1918) (finding a cause of action was stated when plaintiff alleged that she suffered personal physical disorders as a proximate result of an
attack by an escaped chimpanzee, even though the subsequent injury and fright did not
happen simultaneously).
51. See Comstock v. Wilson, 177 N.E. 431, 433–34 (N.Y. 1931) (holding that collision in an automobile accident is sufficient contact); Bosley v. Andrews, 142 A.2d 263,
264 (Pa. 1958) (finding that there can be no compensation which results from shock or
fright absent an accompanying physical injury or physical impact), overruled by
Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970). See also Plummer v. Abbott Labs, 568 F.
Supp. 920, 925 (D.R.I. 1983) (finding that fear based on daughter's heightened risk of
contracting cancer after mother ingested prescribed drug was not sufficient to allow recovery for emotional distress). Cf. Mitchell v. Rochester Ry., 45 N.E. 354, 354 (N.Y.
1896) (holding that although medical testimony showed that fear of being struck by negligently driven carriage may have contributed to miscarriage, there was no cause of action stated because there was no physical impact), overruled by Battalla v. State, 176
N.E.2d 729 (N.Y. 1961).
The Restatement also states that absent physical harm, compensation for emotional distress will be denied. “If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it
results in such emotional disturbance alone, without bodily harm or other compensable
damage, the actor is not liable for such emotional disturbance.” RESTATEMENT (SECOND)
OF TORTS § 436A (1965). This came to be known as the impact rule.
By the nineteenth century some courts relied on the impact rule to determine
recovery. See, e.g., Spade v. Lynn & Boston R.R., 47 N.E. 88 (Mass. 1897) (recovery not
allowed for injuries sustained solely because of emotional distress), overruled by
Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978) (plaintiff may recover for emotional distress damages regardless of physical impact); Mitchell v. Rochester Ry., 45 N.E.
354 (N.Y. 1896) (precluded recovery for mental injuries), overruled by Battalla v. State,
176 N.E.2d 729 (N.Y. 1961) (recovery allowed for mental injuries resulting solely from
emotional distress regardless of physical impact); see also Terri Krivosha Herring, Note,
Administering the Tort of Negligent Infliction of Mental Distress: A Synthesis, 4 CARDOZO
L. REV. 487, 492–97 (1983).
1996]
Dillon's Close Relationship Test
1095
ment, in the judiciary's view, ensured deterrence of fraudulent
claims.52
Although courts utilized physical impact as a condition precedent to recovery, the severity of the contact gradually became less
significant.53 Often, plaintiffs could satisfy the doctrine's threshold
with the slightest of impacts.54 Eventually, the doctrine was overturned in the same jurisdiction in which it originated.55 Today, most
American jurisdictions have abrogated the impact rule in favor of a
more modern approach.56
52. See David J. Leibson, Recovery of Damages for Emotional Distress Caused by
Physical Injury to Another, 15 J. FAM. L. 163, 163–64 (1976–77).
53. See Zelinsky v. Chimics, 175 A.2d 351, 353 (Pa. 1961) (acknowledging that even
the slightest impact, which did not result in injury, sufficed to meet threshold physical
injury).
54. See, e.g., Plummer v. United States, 580 F.2d 72, 76 (3d Cir. 1978) (impact
with bacilli); Clark v. Choctawhatchee Elec. Coop., 107 So. 2d 609 (Fla. 1958) (electrical
shock); Christy Bros. Circus v. Turnage, 144 S.E. 680 (Ga. Ct. App. 1928) (defendant's
horse “evacuated his bowels” into plaintiff's lap); Deutsch v. Shein, 597 S.W.2d 141 (Ky.
1980) (x-rays of pregnant woman); Kentucky Traction & Terminal Co. v. Roman's Guardian, 23 S.W.2d 272 (Ky. 1929) (a trifling burn); Driscoll v. Gaffey, 92 N.E. 1010 (Mass.
1910) (forcible seating on a floor); Homans v. Boston Elevated Ry., 62 N.E. 737 (Mass.
1902) (slight bump against car seat); Spade v. Lynn & Boston R.R., 52 N.E. 747 (Mass.
1899) (slight blow), overruled by Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978);
Porter v. Delaware L. & W. R., 63 A. 860 (N.J. 1906) (dust in the eyes); Comstock v.
Wilson, 177 N.E. 431 (N.Y. 1931) (falling after fainting); Morton v. Stack, 170 N.E. 869
(Ohio 1930) (inhalation of smoke), overruled by Paugh v. Hanks, 451 N.E.2d 759 (Ohio
1983); Zelinski v. Chimics, 175 A.2d 351 (Pa. 1961) (a trivial jolt, however slight); Hess
v. Philadelphia Transp. Co., 56 A.2d 89 (Pa. 1948) (electrical shock); Johnson Freight
Lines, Inc. v. Tallent, 384 S.W.2d 46 (Tenn. 1964) (slight jar). Ironically, the dictionary
defines “impact” as a forceful physical collision, impetus, or onset. See THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 904 (3d ed. 1992).
55. Dulieu v. White & Sons, 2 K.B. 669 (1901), overruling Victorian Rys. Comm'rs
v. Coultas, 13 App. Cas. 222 (P.C. 1888).
56. See HARPER, supra note 3, at 687, § 18.4; Burley, supra note 7, at 933 n.29; see
also Champion v. Gray, 478 So. 2d 17, 18–19 (Fla. 1985) (interest in psychic injury to
bystander plaintiff who witnessed injury to close family member is too great to require
physical impact), modified on other grounds by Zell v. Meek, 665 So. 2d 1048 (Fla. 1995).
But see St. Louis, I. M. & S. R.R. v. Bragg, 64 S.W. 226 (Ark. 1901) (no recovery for
emotional distress allegedly resulting from railroad company informing plaintiff that she
must cross cattle guard); Gilliam v. Stewart, 291 So. 2d 593 (Fla. 1974) (precluding recovery for mental anguish absent physical impact), modified by Champion v. Gray, 478
So. 2d 17 (Fla. 1985) (adopting a modified Dillon approach for bystander plaintiffs);
Braun v. Craven, 51 N.E. 657 (Ill. 1898) (no recovery where defendant landlord merely
yelled at tenant in a loud and boisterous manner); Kalen v. Terre Haute & I. R.R., 47
N.E. 694 (Ind. App. 1897) (barring recovery for emotional distress caused by defendant's
actions which resulted in a horse and buggy running away with plaintiff in it); Traction
& Terminal Co. v. Roman's Guardian, 23 S.W.2d 272 (Ky. 1929) (cause of action did not
exist absent physical impact from trolley wire); Babcock & Wilcox Co. v. Nolton, 71 P.2d
1096
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Zone of Danger
Most jurisdictions eventually replaced the impact rule with the
zone of danger rule as the standard test for determining culpability.57 This enabled courts to expand the scope of liability for emo-
1051 (Nev. 1937) (recovery allowed where defendant backed truck into plaintiff's automobile); Held v. Red Malcuit, Inc., 230 N.E.2d 674 (Ohio Misc. 1967) (no recovery for acts
of negligence causing fright and shock unaccompanied by direct physical injury). Moreover, at least seven states continue to follow the impact rule. See, e.g., M.B.M. Co. v.
Counce, 596 S.W.2d 681 (Ark. 1980); OB-GYN Assocs. of Albany v. Littleton, 386 S.E.2d
146 (Ga. 1989); Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991); Anderson v.
Scheffler, 752 P.2d 667 (Kan. 1988); Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980); Van
Hoy v. Oklahoma Coca-Cola Bottling Co., 235 P.2d 948 (Okla. 1951); Hammond v. Central Lane Communications Ctr., 816 P.2d 593 (Or. 1991).
Peculiarly, Florida is an example of one jurisdiction which abides by the impact
rule for direct victims and abandons it in favor of a modified foreseeability test for bystander plaintiffs. See Zell v. Meek, 665 So. 2d 1048, 1050–54 (Fla. 1995); Reynolds v.
State Farm Mut. Auto. Ins. Co., 611 So. 2d 1294, 1299 (Fla. 4th Dist. Ct. App. 1992)
(Farmer, J., dissenting). Compare Champion v. Gray, 478 So. 2d 17 (Fla. 1985) (finding
that mother could recover for emotional distress where she arrived immediately after the
accident but witnessed the gruesome aftermath of her daughter's negligently caused
death), modified on other grounds by Zell v. Meek, 665 So. 2d 1048 (Fla. 1995) with
Gilliam v. Stewart, 291 So. 2d 593 (Fla. 1974) (holding that the direct victim plaintiff
could not recover for emotional distress absent impact). At least one legal commentator
has advocated that Florida abandon the impact rule in favor of a more modern and uniform approach. See Lester E. Segal, Recovery for Direct Negligent Infliction of Emotional
Distress: The Impact Rule, or a Better Idea?, 69 FLA. B.J. 10 (Feb. 1995). See supra
notes 6 and 7 and accompanying text for a definition of how the terms “direct victim”
and “bystander” plaintiff, respectively, are used in this Article.
57. See, e.g., Consolidated Rail Corp. v. Gottshall, ___ U.S. ___, 114 S. Ct. 2396
(1994); Keck v. Jackson, 593 P.2d 668 (Ariz. 1979); Towns v. Anderson, 579 P.2d 1163
(Colo. 1978); Robb v. Pennsylvania R.R., 210 A.2d 709 (Del. 1965); Williams v. Baker,
572 A.2d 1062 (D.C. App. 1990); Williamson v. Central Ga. Ry., 56 S.E. 119 (Ga. 1906);
Summers v. Western Idaho Potato Processing Co., 479 P.2d 292 (Idaho 1970); Rickey v.
Chicago Transit Auth., 457 N.E.2d 1 (Ill. 1983); Whitsel v. Watts, 159 P. 401 (Kan.
1916); Mahnke v. Moore, 77 A.2d 923 (Md. 1951); Purcell v. St. Paul City Ry., 50 N.W.
1034 (Minn. 1892); First Nat'l Bank v. Langley, 314 So. 2d 324 (Miss. 1975); Bass v.
Nooney Co., 646 S.W.2d 765 (Mo. 1983) (en banc); Cashin v. Northern Pac. Ry., 28 P.2d
862 (Mont. 1934); Hanford v. Omaha & C. B. St. Ry., 203 N.W. 643 (Neb. 1925); Falzone
v. Busch, 214 A.2d 12 (N.J. 1965); Higgins v. Hermes, 552 P.2d 1227 (N.M. Ct. App.),
cert. denied, 558 P.2d 620 (N.M. 1976); Battalla v. State, 176 N.E.2d 729 (N.Y. 1961);
Kimberly v. Howland, 55 S.E. 778 (N.C. 1906); Wilson v. Northern Pac. Ry., 153 N.W.
429 (N.D. 1915); Salmi v. Columbia & Nehalem Rive R.R., 146 P. 819 (Or. 1915); Turner
v. ABC Jalousie Co., 160 S.E.2d 528 (S.C. 1968); Sternhagen v. Kozel, 167 N.W. 398
(S.D. 1918); Trent v. Barrows, 397 S.W.2d 409 (Tenn. 1965); Boucher v. Dixie Medical
Ctr., 850 P.2d 1179 (Utah 1992); Savard v. Cody Chevrolet, Inc., 234 A.2d 656 (Vt.
1967); Lambert v. Brewster, 125 S.E. 244 (W. Va. 1924).
1996]
Dillon's Close Relationship Test
1097
tional distress.58 Although Palsgraf v. Long Island Railroad Co.59 is
not thought of as an emotional distress case, it established the rationale implementing the zone of danger rule in many jurisdictions.60
Justice Cardozo's holding extended a duty of due care to individuals
who were within a reasonable “range of apprehension.”61 Specifically, Justice Cardozo found an existing duty of care when the defendant's negligent conduct put the plaintiff in a state of reasonable
apprehension for her own safety, which, in turn, resulted in emotional distress.62 Thus, in jurisdictions that utilize the zone of danger rule,63 a bystander64 may recover for emotional distress if she
witnesses the injury to a third party while in the range of such apprehension.65 The basis of this rule is that reasonable fear and anxiety for one's own safety, while in the zone of danger, generates emotional distress rather than fear for another.66
Although the courts' use of the rule does provide for recovery in
instances where a bystander witnesses injury to a third person
while in the zone of danger, courts differ in defining the extension of
those parameters. Some courts' aversion to fraudulent claims have
caused them to limit bystander recovery to circumstances in which
the direct victim and the bystander were members of the same family.67 Other courts have not been so restrictive.68 Howev
58. See Rasmussen, supra note 1, at 932.
59. 162 N.E. 99 (N.Y. 1928).
60. See Calandrella, supra note 39, at 92; see also Williams v. Baker, 572 A.2d
1062, 1069 (D.C. 1990); Waube v. Warrington, 258 N.W. 497 (Wis. 1935).
61. Palsgraf, 162 N.E. at 100.
62. See Rasmussen, supra 1, at 932. See also Amaya v. Home Ice, Fuel & Supply
Co., 379 P.2d 513 (Cal. 1963), overruled by Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
63. See supra note 57 and accompanying text for a list of jurisdictions which have
adopted the zone of danger rule.
64. See supra note 7 for a definition of the term “bystander” as it is used in this
Article.
65. See, e.g., Williams v. Baker, 572 A.2d 1062, 1069 (D.C. 1990) (finding that a
mother could not recover for emotional distress caused by witnessing her child suffer as
a result of a negligent misdiagnosis because the mother did not reasonably fear for her
own safety). See also Burley, supra note 7, at 934. Tobin v. Grossman, 249 N.E.2d 419
(N.Y. 1969), overruled by Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984), “is generally
regarded as the leading decision opposing recovery for psychic injury by a bystander outside the zone of physical danger.” Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery For Psychic Injury, 36 U. FLA. L. REV. 333, 339 n.32 (1984).
66. See Bell, supra note 65, at 339; Burley, supra note 7, at 934.
67. See, e.g., Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984) (holding that a plaintiff may recover for emotional distress which is a consequence of witnessing injury or
death to a member of her immediate family). The Bovsun court failed to discuss how
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er, the zone of danger rule clearly does not hold defendants to a duty
of care to all “potential[ly] foreseeable plaintiff[s].”69
Dillon and Its Progeny
closely related a bystander must be to the direct victim in order to state a cause of action. See also Pierce v. Casas Adobes Baptist Church, 782 P.2d 1162, 1165 (Ariz. 1989)
(finding that plaintiff must be closely related to the victim as well as within the zone of
danger); Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861, 866 (Tenn. 1978)
(plaintiff must be “near and dear” to the direct victim of the injury as well as being
within the zone of danger).
68. See, e.g., Owens v. Childrens Mem. Hosp., Omaha Neb., 480 F.2d 465 (8th Cir.
1973) (denying recovery to parents who were not in the zone of danger, but not stating
that law was limited to family); Hopper v. United States, 244 F. Supp. 314, 317 (D.
Colo. 1965) (no recovery where father “was not personally subjected to the hazard of
physical harm,” but making no mention of any limitations); Keck v. Jackson, 593 P.2d
668, 668 (Ariz. 1979) (en banc) (limiting recovery to third persons of close relationship,
“by consanguinity or otherwise”) (emphasis added); Rickey v. Chicago Transit Auth., 457
N.E.2d 1, 5 (Ill. 1983) (adopting zone of danger rule without imposing family limitations);
Asaro v. Cardinal Glennon Mem. Hosp., 799 S.W.2d 595, 599–600 (Mo. 1990); Whetham
v. Bismarck Hosp., 197 N.W.2d 678, 684 (N.D. 1972) (adopting the zone of danger rule
without making mention of familial limit); Shelton v. Russell Pipe & Foundry Co., 570
S.W.2d 861, 865 (Tenn. 1978) (dismissing father's cause of action because he was not
within the zone of danger and refusing to overrule the zone of danger rule by replacing
it with Dillon's foreseeability test, but not stating that zone of danger test was restricted
to family members); Vaillancourt v. Medical Ctr. Hosp. of Vt., Inc., 425 A.2d 92, 95 (Vt.
1980) (precluding recovery because plaintiff was not in the zone of danger, not because
of relationship); Guilmette v. Alexander, 259 A.2d 12, (Vt. 1969) (reaffirming the zone of
danger rule without imposing a limitation to family members); Bowen v. Lumbermens
Mut. Casualty Co., 517 N.W.2d 432, 444 n.28 (Wis. 1994) (indicating that author of majority opinion would not limit recovery to family members). Note that at least one court
has cited to Owens, Keck, Rickey, Whetham, Shelton, and Guilmette as a limitation to
family members. Bovsun, 461 N.E.2d at 847 n.6. Nonetheless, although the facts of these
cases involved a close family member, the courts' decisions do not restrict their holdings
to such. See Owens, 480 F.2d at 467–68; Hopper, 244 F. Supp. at 317; Keck, 593 P.2d at
670; Rickey, 457 N.E.2d at 5; Whetham, 197 N.W.2d at 684; Shelton, 570 S.W.2d at 864;
Vaillancourt, 425 A.2d at 95; Guilmette, 259 A.2d at 13–14. Furthermore in 1994, the
United States Supreme Court held that, under the Federal Employers' Liability Act
(FELA), a railroad employee may bring a cause of action for emotional distress after witnessing the death of a co-worker. Consolidated Rail Corp. v. Gottshall, ___ U.S. ___, 114
S. Ct. 2396 (1994). Perhaps this is an indication that courts do not need to put restrictions on recovery based on blood or marital ties to prevent a flood of fictitious claims.
See supra note 28 and accompanying text for a discussion of courts' fears of fraudulent
claims; see infra notes 193–202 and accompanying text for a suggestion that the judiciary's fear is fallacious.
69. Asaro v. Cardinal Glennon Mem. Hosp., 799 S.W.2d 595, 599 (Mo. 1990) (en
banc). See infra notes 77–80 and accompanying text for a discussion of Dillon's extension
to foreseeable plaintiffs.
1996]
Dillon's Close Relationship Test
1099
For years, courts found that a defendant did not owe a duty of
care to a bystander plaintiff70 because the defendant could not reasonably expect his or her negligence to the direct victim to cause
harm to a bystander.71 However, in 1968, the California Supreme
Court for the first time allowed a bystander to recover for her emotional distress even though she was not within the zone of danger.72
In Dillon, the court permitted a mother to recover for emotional
distress resulting from witnessing the negligent death of her daughter.73 The defendant negligently killed the mother's infant daughter
as the child lawfully crossed the street.74 Had the Dillon court applied the zone of danger rule enunciated in Amaya v. Home Ice, Fuel
& Supply Co.,75 the mother could not have recovered for the mental
anguish resulting from her daughter's death. In overruling Amaya,
the majority noted that the facts of the instant case “expose[d] the
70. Waube v. Warrington, 258 N.W. 497 (Wis. 1935), overruled by Bowen v.
Lumbermens Mut. Casualty Co., 517 N.W.2d 432 (Wisc. 1994). Prosser suggested that
this reasoning is directly linked to Palsgraf. KEETON ET AL., supra note 1, § 54, at 365.
See supra note 7 and accompanying text for a definition of how “bystander” plaintiff is
used in this Article.
71. See, e.g., Resavage v. Davies, 86 A.2d 879 (Md. 1952); Cote v. Litawa, 71 A.2d
792 (N.H. 1950); Waube v. Warrington, 258 N.W. 497 (Wis. 1935), overruled by Bowen v.
Lumbermens Mut. Casualty Co., 517 N.W.2d 432 (Wisc. 1994). See supra note 6 and
accompanying text for a definition of how “direct victim” is used in this Article. See supra note 7 and accompanying text for a definition of “bystander.”
72. See Dillon v. Legg, 441 P.2d 912 (Cal. 1968), overruling Amaya v. Home Ice,
Fuel & Supply Co., 379 P.2d 513 (Cal. 1963). English courts were quicker to recognize
this cause of action. See, e.g., Boardman v. Sanderson, 1 W.L.R. 1317 (C.A. 1964).
73. Dillon, 441 P.2d at 924–25.
74. Id. at 914. The mother's complaint alleged that she had suffered severe emotional shock as a proximate result of witnessing the defendant's negligent actions. Id.
Under Amaya's zone of danger rule, the decedent's sister, who was in closer proximity to
the accident, would have been allowed to recover for her emotional trauma. Id. Thus,
the court had before it “a case that dramatically illustrate[ed] the difference in result
flowing from the alleged requirement that a plaintiff cannot recover for emotional trauma in witnessing the death of a child or sister unless she also feared for own safety
because she was actually within the zone of physical impact.” Id. at 915. The court
found that the facts showed “the fallacy of the rule that would deny recovery in the one
situation and grant it in the other.” Id.
75. 379 P.2d 513 (Cal. 1963). When the California Supreme Court decided Amaya,
it overruled, then, Judge Tobriner's lower court decision which enunciated a foreseeability test and focused on the “potential risk of harm to a class of persons which includes the plaintiff.” Amaya v. Home Ice, Fuel & Supply Co., 23 Cal. Rptr. 131, 134 (Ct.
App. 1962), vacated, 379 P.2d 513 (Cal. 1963). When Justice Tobriner was appointed to
the California Supreme Court he authored the majority opinion in Dillon v. Legg and reintroduced his foreseeability analysis. See Dillon, 441 P.2d at 912 (Cal. 1968).
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hopeless artificiality of the zone-of-danger rule.”76
The Dillon court established foreseeability as “the chief element
in determining whether [a] defendant owes a duty or an obligation
to [the] plaintiff.”77 The court then went on to identify three factors
to be used in determining whether a plaintiff's emotional distress
was foreseeable:
(1) Whether plaintiff was located near the scene of the accident as
contrasted with one who was a distance away from it. (2) Whether
the shock resulted from a direct emotional impact upon plaintiff
from the sensory and contemporaneous observance of the accident,
as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related,
as contrasted with an absence of any relationship or the presence of
only a distant relationship.78
The majority decided that a determination of whether these factors
had been satisfied would have to be made on a case-by-case basis.79
By doing so, the court, in essence, left it up to lower tribunals to
decide whether an injured party's emotional distress was “reasonably foreseeable.”80
In rejecting the zone of danger rule, the Dillon court rebutted
the age old policy which held that duty did not extend to a bystander
plaintiff outside the zone of danger.81 The majority argued that denying meritorious claims because of the fear of encouraging
76. Dillon, 441 P.2d at 915. For a criticism of Dillon, see Timothy M. Cavanaugh,
Comment, A New Tort in California: Negligent Infliction of Emotional Distress (For Married Couples Only), 41 HAST. L.J. 447, Part II, 456–62 (1990).
77. Dillon, 441 P.2d at 920.
78. Id. Interestingly, Dillon also required the plaintiff to exhibit some form of physical manifestation as a result of the emotional distress. Id. See Levit, supra note 28, at
142 n.32 which lists cases requiring a physical manifestation to ensue from emotional
distress. Historically, courts ignored this requirement because of its similarity to
Amaya's requirement under the zone of danger rule and simply applied Dillon's threetier guidelines. Cf. Krouse v. Graham, 562 P.2d 1022, 1030–31 (Cal. 1977). Eventually,
the California Supreme Court formally abandoned this requisite. Molien v. Kaiser Found.
Hosps., 616 P.2d 813 (Cal. 1980).
79. Dillon, 441 P.2d at 920.
80. Id. at 921. A case-by-case decision would have to be made as to “what the ordinary man under such circumstances should reasonably have foreseen.” Id.
81. See supra notes 57–69 and accompanying text for a discussion of the zone of
danger rule.
1996]
Dillon's Close Relationship Test
1101
fraudulent ones was unjust.82 It claimed that courts compromised
the basic responsibility with which they were entrusted when they
used a rule of law to sweep away a class of meritorious claims in the
name of administrative convenience.83 Furthermore, the majority
argued that the possibility that some fraudulent claims may go undetected was remote.84 The Dillon court also dismissed the prospect
that an infinite amount of cases would find their way to the steps of
the courthouse; it maintained that the guidelines it established were
sufficiently concrete to avoid such a result.85 Finally, the court reasoned that a case-by-case analysis would deter the threat of unlimited liability.86
By 1984, at least one scholar noted that Dillon was quickly becoming the majority view.87 As courts began to adopt variations of
82. Dillon, 441 P.2d at 917–18.
83. Id.
84. Id.
85. Id. at 919–20.
86. Id. at 920. See supra note 30 and accompanying text and infra notes 193–202
and accompanying text.
87. See Bell, supra note 65, at 339 (stating that a majority of courts are accepting
Dillon at least to some extent); see also Marlowe, supra note 28, at 806–08 nn.139–42
(noting that almost one-third of all states have adopted Dillon's guidelines in some
form). For examples of various states adopting Dillon, see Croft v. Wicker, 737 P.2d 789
(Alaska 1987); Champion v. Gray, 478 So. 2d 17 (Fla. 1985), modified on other grounds
by Zell v. Meek, 665 So. 2d 1048 (Fla. Oct. 5, 1995); Fineran v. Pickett, 465 N.W.2d 662
(Iowa 1991); Lejeune v. Rayne Branch Hosp., 556 So. 2d 559 (La. 1990); Cameron v.
Pepin, 610 A.2d 279 (Me. 1992); Stockdale v. Bird & Son, Inc., 503 N.E.2d 951 (Mass.
1987); Nugent v. Bauermeister, 489 N.W.2d 148 (Mich. Ct. App. 1992), appeal denied,
503 N.W.2d 904 (Mich. 1993); Entex, Inc. v. McGuire, 414 So. 2d 437 (Miss. 1982);
Maguire v. State, 835 P.2d 755 (Mont. 1992); James v. Lieb, 375 N.W.2d 109 (Neb.
1985); Buck v. Greyhound Lines, Inc., 783 P.2d 437 (Nev. 1989); Wilder v. Keene, 557
A.2d 636 (N.H. 1989); Folz v. State, 797 P.2d 246 (N.M. 1990), cert. denied sub nom.
State v. Folz, 856 P.2d 250 (N.M. 1993); Johnson v. Ruark, Obstetrics and Gynecology
Assocs., 395 S.E.2d 85 (N.C. 1990); Paugh v. Hanks, 451 N.E.2d 759 (Ohio 1983); Sinn v.
Burd, 404 A.2d 672 (Pa. 1979); Reilly v. United States, 547 A.2d 894 (R.I. 1988); Kinard
v. Augusta Sash & Door Co., 336 S.E.2d 465 (S.C. 1985); Boyles v. Kerr, 855 S.W.2d 593
(Tex. 1993); Gain v. Carroll Mill Co., 787 P.2d 553 (Wash. 1990); Heldreth v. Marrs, 425
S.E.2d 157 (W. Va. 1992); Contreras v. Carbon County Sch. Dist. No. 1, 843 P.2d 589
(Wyo. 1992). However, many courts have also rejected Dillon in favor of the zone of danger rule. See, e.g., Welsh v. Davis, 307 F. Supp. 416 (D. Mont. 1969); James v. Harris,
729 P.2d 986 (Colo. Ct. App. 1986); McGovern v. Piccolo, 372 A.2d 989 (Conn. 1976);
Rickey v. Chicago Transit Auth., 457 N.E.2d 1, 5 (Ill. 1983); Stadler v. Cross, 295
N.W.2d 552 (Minn. 1980); Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984); Whetham v.
Bismarck Hosp., 197 N.W.2d 678 (N.D. 1972); Shelton v. Russell Pipe & Foundry Co.,
570 S.W.2d 861 (Tenn. 1978); Guilmette v. Alexander, 259 A.2d 12 (Vt. 1969); Grimsby
v. Samson, 530 P.2d 291 (Wash. 1975).
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Dillon's three-pronged test, a debate arose over the scope of Dillon's
requirement that there be a close relationship.88 Much of the debate
focused on whether an unmarried bystander victim could meet that
requirement.89 While some courts believed that it was unwise to
erect an absolute boundary limiting the class of possible bystander
plaintiffs,90 others found this restriction necessary.91
The Hawaii Supreme Court expanded liability for victims of emotional distress.
However, it rejected Dillon's foreseeability analysis to determine whether the defendant
had breached its duty to the bystander, choosing instead a proximate cause approach.
Leong v. Takasaki, 520 P.2d 758, 765 (Haw. 1974). The court assumed that the infliction
of emotional distress alone constituted a breach of duty. Id. at 765. The Leong court
adopted a proximate cause test similar to that of Justice Andrew's dissent in Palsgraf
which found that once a defendant commits a negligent act, liability is established if it is
connected to the injury, regardless of how remote the consequences. Id. at 764–65;
Calandrella, supra note 39, at 95 n.106 (citing Palsgraf v. Long Island R.R., 162 N.E. 99,
103 (N.Y. 1928) (Andrews, J., dissenting)).
88. See, e.g., Krouse v. Graham, 562 P.2d 1022 (Cal. 1977) (holding that spouses
are sufficiently related); Kately v. Wilkinson, 148 Cal. App. 3d 576 (1983) (holding that
best friend of victim could not recover); Trapp v. Schuyler Constr., 149 Cal. App. 3d
1140 (1983) (finding that first cousin did not have standing to recover although relationship was analogous to that of siblings); Mobaldi v. Board of Regents, 55 Cal. App. 3d
573, 576–77 (1976) (finding that a foster mother could recover for witnessing the negligent death of her foster son), overruled by Elden v. Sheldon, 758 P.2d 582 (Cal. 1988);
Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1974) (holding that child may recover for
witnessing accident involving stepfather's mother); Walker v. Clark Equipment Co., 320
N.W.2d 561 (Iowa 1982) (holding that siblings are closely related); Genzer v. City of Mission, 666 S.W.2d 116 (Tex. Ct. App. 1983) (finding that a grandchild is closely related).
89. See, e.g., Drew v. Drake, 110 Cal. App. 3d 555 (1985) (finding that female bystander who lived with victim for three years could not recover); Ledger v. Tippitt, 164
Cal. App. 3d 625 (1985) (holding that unmarried plaintiff who lived with victim for two
years had standing to recover), overruled by Elden v. Sheldon, 758 P.2d 582 (Cal. 1988).
See infra notes 161–223 and accompanying text for the author's analysis of whether a
close relationship should encompass unmarried cohabitants.
90. See, e.g., Pieters v. B-Right Trucking, Inc., 669 F. Supp. 1463, 1473 (N.D. Ind.
1987) (allowing plaintiff to recover for emotional distress caused by her fiance's injuries
and death); Paugh v. Hanks, 451 N.E.2d 759, 767 (Ohio 1983) (“declin[ing] to draw an
absolute boundary around the class of persons whose peril may stimulate the mental
distress”); Heldeth v. Marrs, 425 S.E.2d 157, 163 (W. Va. 1992) (holding that no one
element is determinative of a close relationship).
91. Coon v. Joseph, 192 Cal. App. 3d 1269 (1987) (life-long, exclusive partners of
the same sex did not meet the “close relationship” requirement); Ferretti v. Weber, 513
So. 2d 1333, 1333 (Fla. 3d Dist. Ct. App. 1987) (no marriage with plaintiff's “live in” lady
friend and, therefore, no legal relationship); Barnhill v. Davis, 300 N.W.2d 104, 108
(Iowa 1981) (relationship must be that of husband and wife or “within the second degree
of consanguinity”); Carlson v. Illinois Farmers Ins. Co., 520 N.W.2d 534, 538 (Minn. Ct.
App. 1994) (refusing to extend liability to bystander who witnessed friend's death); Folz
v. State, 797 P.2d 246 (N.M. 1990), cert. denied sub nom. State v. Folz, 856 P.2d 250
(N.M. 1993) (plaintiff and direct victim must enjoy a marital or familial relationship);
Trombetta v. Conkling, 593 N.Y.S.2d 670, 671 (App. Div. 1993) (aunt, who did not reside
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In Thing v. La Chusa,92 the California Supreme Court commented that Dillon's case-by-case analysis “not only produced inconsistent rulings in the lower courts, but ha[d] provoked considerable critical comment by scholars who [were] attempt[ing] to reconcile the cases.”93 The Thing court reasoned that California's
difficulty in applying the Dillon factors justified redefining the
guidelines.94 Thus, the supreme court held that a mother who did
not contemporaneously witness her child's accident could not recover
for emotional distress.95 In redefining the guidelines set forth in
Dillon,96 the court based its decision on familiar policy considerations: the limitation of potential liability;97 the cost to society as a
whole;98 the inability of monetary damages to compensate for the
loss and make the plaintiff whole;99 the difficulty in measuring those
damages;100 and the intangible nature of the loss.101
The supreme court's retreat had been foreshadowed by a case
decided seven months earlier when it modified Dillon.102 In Elden v.
Sheldon,103 the court held that an individual may not state a cause
of action for negligent infliction of emotional distress as a bystander
if that person does not share a legally recognized relationship with
with niece, was not “immediate family” and, therefore, could not recover for her emotional distress as bystander).
92. 771 P.2d 814 (Cal. 1989) (en banc).
93. Id. at 825.
94. Id.
95. Id. at 829. In Thing, a mother was denied the right to recover for her emotional injuries when, after being told that her son had been hit by a car and seriously
injured, she rushed to his side and found him lying on the road. Id. at 815. Contra
Champion v. Gray, 478 So. 2d 17 (Fla. 1985), modified on other grounds by Zell v. Meek,
665 So. 2d 1048 (Fla. 1995); Bowen v. Lumbermens Mut. Casualty Co., 517 N.W.2d 432,
444–45 (Wis. 1994) (holding that a mother may bring a cause of action where she arrived after the accident but “witness[ed] . . . the gruesome aftermath”).
96. Thing, 771 P.2d at 829.
97. Id. at 826. Thing rejected the idea that foreseeability alone should dictate liability, reasoning that other California courts had failed to curb the limitless exposure to
liability created by Dillon's foreseeability test. Id. at 821, 826.
98. Id. at 826–27.
99. Id. at 827.
100. Id.
101. Id. at 828–29.
102. See Elden v. Sheldon, 758 P.2d 582 (Cal. 1988). Elden's decision did not explicitly overrule Dillon. However, the court virtually abandoned the guidelines set out in
Dillon. See Cavanaugh, supra note 76, at 453.
103. 758 P.2d 582 (Cal. 1988).
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the direct victim.104 In Elden, the plaintiff and his lover, with whom
he cohabited, were involved in an automobile accident.105 The plaintiff was seriously injured and his lover was thrown from the car and
died a few hours later.106 The plaintiff brought suit against the
driver seeking damages for the emotional distress he sustained
while witnessing the injuries to his “de facto spouse.”107 The court
reasoned that although unmarried cohabitant claims were foreseeable, the state's interest in promoting marriage, preserving judicial
efficiency and administration, and limiting liability overrode other
social policy considerations.108
III. DUNPHY v. GREGOR: THE FACTS
In April of 1988, Eileen Dunphy and Michael Burwell became
engaged to be married.109 They began living together two months
later and set their wedding date for February 29, 1992.110 While
helping a friend change his tire on the shoulder of the road on September 29, 1990, Michael was severely injured when James Gregor
drove into him.111 Eileen, who stood five feet behind her friend's
disabled vehicle,112 witnessed the collision as it occurred and imme-
104. Id. at 588. The court also applied analogous reasoning to the plaintiff's cause of
action for loss of consortium. Id. at 588–90. For a discussion of how Elden affected loss
of consortium rights in California, see Rasmussen, supra note 1, at 942–47.
105. Elden, 758 P.2d at 582.
106. Id.
107. Id. at 583.
108. 758 P.2d at 586–88. See infra notes 166–208 for a critical analysis of these
policy reasons.
109. Dunphy v. Gregor II, 642 A.2d 372, 373 (N.J. 1994). For the purposes of this
Article the appellate court's decision will be referenced as Dunphy v. Gregor I and the
New Jersey Supreme Court's opinion as Dunphy v. Gregor II. References to the Dunphy
court are to the New Jersey Supreme Court.
110. Id.
111. Dunphy v. Gregor I, 617 A.2d 1248, 1250 (N.J. Super. Ct. App. Div. 1992).
Michael was changing the left rear tire of the friend's car when he was struck. Dunphy
II, 642 A.2d at 373. Presumably, Michael was changing the tire closest to the road in
the same direction James Gregor drove his vehicle.
112. Although the court makes no mention of it, since Eileen was protected by her
friend's disabled vehicle, she apparently stood outside the zone of danger. New Jersey
law allows a plaintiff to recover for her emotional distress, if her injuries are foreseeable, even though she stands outside the zone of danger. See Portee v. Jaffee, 417 A.2d
521, 524–27 (N.J. 1980) (finding that although mother had not been subject to any risk
of physical harm, she could recover for emotional distress caused by witnessing her seven year old son suffer and die while he was trapped in an elevator).
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diately ran 240 feet to where Michael's body had been thrown.113
When Eileen realized that Michael was still alive, she removed
gravel and blood from his mouth to ease his breathing.114 She tried
comforting him by holding down his hands and feet as they uncontrollably thrashed around.115 As a result of the injuries he sustained,
Michael died the following morning at a local hospital.116 After the
accident, Eileen Dunphy underwent psychological and psychiatric
treatment for anxiety and depression.117
Thereafter, Eileen filed suit against James Gregor, the driver of
the vehicle that struck Michael, seeking damages for the emotional
distress she suffered as the result of witnessing the death of her
fiancé of more than two years.118 The trial court dismissed the action
finding that an individual who was not married to and did not have
an intimate familial relationship with the deceased did not have
standing to file suit for negligent infliction of emotional distress.119
The appellate division reversed,120 holding that whether the relationship of engaged cohabitants constituted the equivalent of a familial relationship was a question of fact for a jury to decide. 121 The
supreme court affirmed the appellate court's decision. In doing so,
the court held that although an individual was not legally married
to a deceased victim, that individual may have a legally recognizable
cause of action for negligent infliction of emotional distress if she
witnesses, as a bystander, the wrongful death or serious bodily injury of a person with whom she enjoyed an intimate familial relationship characterized as stable, enduring, substantial, and mutually supportive.122
IV. THE DUNPHY COURT'S REASONING
113. Dunphy II, 642 A.2d at 373. The court described Michael's body as being “either dragged or propelled 240 feet.” Id.
114. Id.
115. Id.
116. Id.
117. Dunphy II, 642 A.2d at 373.
118. Id.
119. Id.
120. Dunphy v. Gregor I, 617 A.2d 1248 (N.J. Super. Ct. App. Div. 1992). New Jersey's intermediate court is the Superior Court of New Jersey, Appellate Division; the
New Jersey Supreme Court is the state's court of last resort.
121. Dunphy I, 617 A.2d at 1254.
122. Dunphy II, 642 A.2d at 380.
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The majority began its analysis by acknowledging that many
states, including its own, recognize bystander liability in cases involving negligent infliction of emotional distress.123 The supreme
court went on to note that typically such claims involve individuals
who experience mental anguish as a result of having witnessed the
wrongful death or serious physical injury of another with whom they
had a “close, substantial, and enduring relationship.”124 Thus, the
only issue before the Dunphy court was whether such a “relationship” was broad enough to permit an individual, who cohabited with
and was engaged to marry the victim at the time of the accident, to
recover for emotional distress when witnessing the wrongful death
of her loved one.125
The court then discussed Portee v. Jaffee,126 the first New Jersey
case to recognize bystander liability in an action for negligent infliction of emotional distress.127 The majority recognized that in adopting bystander liability, the Portee court approved of Dillon's general
proposition.128 In doing so, Portee adopted a four-factor test, similar
to the factors the Dillon court enunciated,129 in determining whether
a bystander has stated a cause of action for negligent infliction of
emotional distress. Under Portee, a claimant must show: (1) that the
defendant's negligence resulted in the death or serious physical
injury of the direct victim; 1 3 0 (2) “`a marital or in
123. Dunphy v. Gregor II, 642 A.2d 372, 373 (N.J. 1994).
124. Id. For a discussion of other cases extending bystander liability to individuals
other than those who are married or have a close familial relationship see supra note
68.
125. Id. Justice Handler, writing for the majority, then discussed the conflict dividing the lower courts when focusing on the nature of that relationship. For example, Justice Handler pointed out that the trial court dismissed Eileen Dunphy's suit because the
judge felt that a legally recognized relationship must exist for a suit such as this one to
survive. Id. However, Justice Handler acknowledged that the appellate court held that a
jury should determine whether the relationship of a cohabitant parallels that of an intimate familial relationship, such as a married couple. Id.
126. 417 A.2d 521 (N.J. 1980).
127. Dunphy II, 642 A.2d at 373 (citing Portee v. Jaffee, 417 A.2d 521 (N.J. 1980)).
In Portee, the court recognized a mother's right to sue for the severe mental anguish she
suffered after witnessing her seven year old son's slow and horrifying death as a result
of becoming wedged between the outer elevator door and the wall of the elevator shaft.
Portee, 417 A.2d at 522–23.
128. Dunphy II, 642 A.2d at 375. See supra notes 72–86 and accompanying text for
a discussion of Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
129. See supra text accompanying note 78.
130. See supra note 6 for a definition of “direct victim” as used by the author in
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timate, familial relationship between the plaintiff and the injured
person;'” (3) contemporaneous observation of the injury or death;
and (4) resulting severe emotional distress.131
The Dunphy court reaffirmed its interpretation of an intimate
familial relationship between the bystander and direct victim as discussed in Portee. The majority noted that it is the “`presence of deep,
intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling.'”132 The court found that the relationship standard set forth in Portee also could include the relationship between
Eileen Dunphy and Michael Burwell.133
In affirming the appellate court's opinion, the majority refuted
the appellate court's dissent which interpreted Portee's “familial
relationship” requirement to be restricted to marriage or blood
ties.134 The court noted that New Jersey's application of bystander
this Article.
131. Dunphy II, 642 A.2d at 374 (citing Portee, 417 A.2d at 528 (emphasis added)).
132. Id. (quoting Portee, 417 A.2d at 526–27). The court recognized that Portee found
marriage or the presence of an intimate familial relationship to be essential. However,
the Dunphy majority correctly recognized that nowhere in the Portee opinion is a familial relationship confined to blood ties or marriage. Id.
133. Id. See supra notes 109–17 and accompanying text for a discussion of the facts
in Dunphy v. Gregor.
134. Id. (citing Dunphy I, 617 A.2d at 1255 (Muir, J., dissenting)). The appellate
division's dissent argued that New Jersey should limit bystander recovery as the California Supreme Court had in Elden v. Sheldon. Dunphy I, 617 A.2d at 1256 (citing Elden v.
Sheldon, 758 P.2d 582 (Cal. 1988)). For a discussion of Elden see supra notes 102–08
and accompanying text. In the supreme court's dissent, Justice Garibaldi concurred with
the lower court's dissent assessing that Portee was intended to be limited to bystanders
who had a marital or blood relationship with the direct victim. Dunphy II, 642 A.2d at
382. See infra notes 144–60 and accompanying text for a discussion of Justice Garibaldi's
dissent in Dunphy II.
The majority argued that Elden was simply a reaction to California's impression
that bystander liability law had become much too expansive in that state. Dunphy II,
642 A.2d at 375. Subsequent California courts' decisions had practically abandoned the
boundaries set forth in Dillon's three-prong test. Id. (citing Ochoa v. Superior Court, 703
P.2d 1, 6–7 (Cal. 1985)) (en banc) (permitting recovery although sudden and accidental
prong not met); Molien v. Kaiser Foundation Hosp., 616 P.2d 813, 817–21 (Cal. 1980) (en
banc) (creating a new class of “direct victims” by finding that accompanying physical
injury did not apply to this class of plaintiffs); Krouse v. Graham, 562 P.2d 1022, 1031
(Cal. 1977) (en banc) (finding that contemporaneously witnessing the accident to direct
victim does not require a “visual perception of the impact causing death or injury”);
Nazaroff v. Superior Court, 80 Cal. App. 3d 553, 566–67 (1978) (expanding the parameters of contemporaneously observing the injury)). The majority also cites to the California Supreme Court's opinion in Thing v. La Chusa, 771 P.2d 814 (Cal. 1989) (en banc),
as evidence of the court's fear that Dillon's factors were being dissolved. See Dunphy II,
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liability law had not been infested with the problems135 that plagued
the California court system.136 Therefore, the court found there was
no need to blindly restrict the Portee analysis with “a hastily-drawn
`bright-line' distinction between married and unmarried persons . . . .”137
The court then turned to a discussion of unmarried cohabitants
as foreseeable plaintiffs.138 The court asserted that a duty to unmarried cohabitants is foreseeable since they represent a clear and
distinct class of potential plaintiffs.139 Arguing that recognizing a
duty of care to unmarried cohabitants does not extend society's expected burden of care to unforeseeable plaintiffs, the majority noted
that recognition of such a standard “`advances the goals of tort compensation and sufficiently limits liability.'”140
642 A.2d at 375. For a brief discussion of Thing, see supra notes 92–101 and accompanying text.
Several other commentators have also noted that California precedent following
Dillon led that state's supreme court to move toward strict application of the factors. See
Calandrella, supra note 39, at 97–100; Cavanaugh, supra note 76, at 456–66; Lefler,
supra note 16, at 981–91; Sheila O'Hare, Note, Elden v. Sheldon: Negligent Infliction of
Emotional Distress and Loss of Consortium Denied to Unmarried Cohabitants, 26 CAL.
W. L. REV. 175, 188–90 (1989).
135. See supra note 134.
136. Dunphy II, 642 A.2d at 375–76. The court contended that New Jersey, unlike
California, had applied the Dillon-Portee factors restrictively and prudently. For example,
the Dunphy court cited Eyrich ex rel. Eyrich v. Dam, 473 A.2d 539 (N.J. Super. Ct. App.
Div.), cert. denied, 483 A.2d 127 (N.J. 1984). Id. In Eyrich, the court dismissed a bystander plaintiff's action when she witnessed the defendant's leopard fatally attack the
young child of a close friend, who had entrusted the plaintiff to care for the child for the
day. Eyrich, 473 A.2d at 547–48. The court found that the only way the plaintiff could
state a cause of action would be to extend the Portee factor regarding a close familial
relationship, which it was unwilling to do. Id. at 547. Conversely, the New Jersey Supreme Court argued, California had expanded all of the factors set out in Dunphy which
were designed to contain liability. Dunphy II, 642 A.2d at 375. See supra note 134 for a
discussion of how some California appellate courts broadly applied Dillon.
137. Dunphy II, 642 A.2d at 376 (citing People Express Airlines, Inc. v. Consolidated
Rail Corp., 495 A.2d 107, 111 (N.J. 1985)).
138. Id. at 376–77.
139. Id. at 377. The court asserted that it is reasonably foreseeable that unmarried
individuals may share the same qualities as a married couple. Id. Further, it endorsed
the lower court's distinction between the emotional injuries suffered by close personal
friends and relatives in general as compared to the mental anguish suffered by a bystander whose relationship with the direct victim “`at the time of the injury, is deep,
lasting, and genuinely intimate.'” Id. (quoting Dunphy I, 617 A.2d at 1255).
140. Id. (quoting Elden, 758 P.2d at 593 (Broussard, J., dissenting)). Justice
Handler's opinion depicts the court's trust in lower tribunals' ability to deal with the
realities, rather than legalities, of relationships to ensure that cases are not frivolously
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The Dunphy court then identified several different factors for a
court to consider in determining whether a relationship is of a familial nature. New Jersey lower courts
must take into account the duration of the relationship, the degree
of mutual dependence, the extent of common contributions to a life
together, the extent and quality of shared experience, and, as expressed by the Appellate Division, “whether the plaintiff and the
injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day
relationship, and the manner in which they related to each other in
attending to life's mundane requirements.”141
The court concluded by dismissing Justice Garibaldi's assertion
that policy considerations should override foreseeability factors because of their antagonistic disregard of basic social concerns.142 Unpersuaded by policy reasons which advocate the prevention of fraudulent claims, the promotion of marriage, and consideration of insurance premiums, the court found no reason to limit bystander recovery to married individuals.143
Justice Garibaldi's Dissent
Justice Garibaldi's dissent immediately conceded that an unmarried cohabitant may suffer the same emotional distress from
witnessing the death or serious injury of a loved one as would a
married bystander.144 Her discord with the majority opinion was
that she did not believe that the standards it set forth sufficiently
limited who may qualify as an intimate family member.145 She argued that an inquiry ending with an exhibition of a strong emotional
presented before the court. Id. at 378. The court compared assessment of damages in
loss of consortium cases where the characteristics of a relationship must be probed to
accurately value the loss of that relationship. Id.
141. Id. (quoting Dunphy I, 617 A.2d at 1255).
142. Dunphy II, 642 A.2d at 378-79 (citing Garibaldi, J., dissenting). See infra notes
144–60 and accompanying text for a discussion of Justice Garibaldi's dissent in Dunphy
II.
143. Dunphy II, 642 A.2d at 378–79. For a more complete discussion of the policy
concerns expressed in the opinion, see Justice Garibaldi's dissent infra notes 144–60 and
accompanying text. See supra notes 25–30 and accompanying text for a historical synopsis of how courts used various public policy concerns to limit emotional distress cases.
144. Dunphy II, 642 A.2d at 380 (Garibaldi, J., dissenting).
145. Id.
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relationship and foreseeable emotional trauma fell short of a comprehensive analysis.146
In her dissent, Justice Garibaldi criticized the majority's disregard of California's opinion in Dillon v. Legg.147 She reasoned that
when New Jersey developed its analysis for negligent infliction of
emotional distress in Portee v. Jaffee,148 it relied on Dillon149 as a
model and, therefore, New Jersey should follow the California Supreme Court's lead and decline to expand Dillon to unmarried
cohabitants.150 Justice Garibaldi also argued that the inability to
distinguish between de facto spouses, de facto children, de facto parents, or de facto siblings would result in an intolerable burden on
society.151 Interestingly, the dissent chose to rely on a recurring historical theme — fraud.152 Although Justice Garibaldi agreed that
drawing a bright-line distinction between married and unmarried
individuals is arbitrary, she contended that “a certain degree of arbitrariness is necessary . . . in setting the outer limits of liability . . .
for emotional distress.”153 She insisted that if engaged cohabitants
146. Id. Justice Garibaldi found that such an analysis would allow recovery for emotional distress suffered amongst close friends. Id.
147. Id. at 380–81. For a discussion of Dillon see supra notes 72–86 and accompanying text.
148. 417 A.2d 521 (N.J. 1980). See supra notes 126–31 and accompanying text for a
discussion of Portee.
149. 441 P.2d 912 (Cal. 1968). For a discussion of Dillon see supra notes 72–86 and
accompanying text.
150. Dunphy II, 642 A.2d at 380 (Garibaldi, J., dissenting). Justice Garibaldi noted
that although New Jersey had applied the Dillon-Portee factors narrowly, she did not see
the need to expand its application. Id. at 380–81. See supra notes 134–37 and accompanying text to see how the majority decision disputes this reasoning.
151. Dunphy II, 642 A.2d at 381 (Garibaldi, J., dissenting) (citing Elden v. Sheldon,
758 P.2d 582, 588 (Cal. 1988)).
152. Id. Justice Garibaldi asserted that courts should analyze emotional distress
with vigilance because emotional injuries, unlike physical injuries, are difficult to define
and may potentially present themselves limitlessly. Id. For a discussion of fraudulent
claims as a basis for judicial reluctance in accepting emotional injuries see supra note 28
and accompanying text.
153. Dunphy II, 642 A.2d at 381 (Garibaldi, J., dissenting). Justice Garibaldi declared that at some point courts must always draw lines when providing remedies, and
whenever a court does so, it runs the risk of being accused of arbitrariness. Id. (quoting
Frame v. Kothari, 560 A.2d 675, 681 (N.J. 1989)). The dissent rhetorically asked the majority if it actually believed that a mother who is told that her child was killed or witnessed the agonizing death of her child without contemporaneously witnessing the fatal
accident, suffers less mental anguish than a mother who was present when the accident
occurred. Dunphy II, 642 A.2d at 381. Justice Garibaldi suggested that both mothers
may suffer equal emotional distress, but the law chooses to compensate the mother who
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may state a cognizable cause of action, one could argue that it would
be arbitrary to keep engaged couples who do not live together from
recovering for their emotional distress.154
Justice Garibaldi also identified other public policy considerations favoring the exclusion of unmarried cohabitants as a recognized class of plaintiffs eligible to recover for their emotional distress as bystanders.155 For example, she noted that bright-line distinctions between married and unmarried couples exist in other
areas of the law such as loss of consortium, inheritance by intestate
succession, and alimony.156 She feared that once the clear distinction
of marriage was replaced in favor of a nebulous standard, liability
may grow limitlessly.157
Finally, Justice Garibaldi criticized the standards the majority
developed to determine who may qualify as a bystander plaintiff in
emotional distress suits.158 She warned that the relationship which
the majority identified as “close, substantial, and enduring” would
open a Pandora's box forcing courts to delve into intimate details of
individuals' lives.159 Thus, Justice Garibaldi concluded that the social policy concerns which result from the expensive and troublesome task of trying to define parameters to meet the open-ended
nature of the majority's standards compelled a reversal.160
V. CRITICAL ANALYSIS
The majority and dissenting opinions in Dunphy v. Gregor161
expressed two entirely different views regarding whether unmarried
cohabitants met the Dillon-Portee close relationship standard in
bystander liability.162 The dissent advocated a narrow interpretation
when it adopted the opinion expressed in Elden v. Sheldon163 and
was present at the time of the accident for her mental anguish. Id.
154. Dunphy II, 642 A.2d at 382 (Garibaldi, J., dissenting).
155. Id.
156. Id. at 382–83.
157. Id. at 383.
158. Id. See supra text accompanying notes 132, 141.
159. Dunphy II, 642 A.2d at 383 (Garibaldi, J., dissenting).
160. Id. at 384.
161. 642 A.2d 372 (N.J. 1994).
162. See supra notes 123–60 and accompanying text for a discussion of the two opinions.
163. 758 P.2d 582 (Cal. 1988). See supra notes 102–08 and accompanying text for a
discussion of Elden.
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the policy reasons discussed therein.164 The majority chose to follow
a broader and more liberal view. After considering the policy reasons
on which the dissent relied, it found that the foreseeability of the
injury outweighed those policy reasons.165 As a result, the different
rationales yielded different conclusions.
A. Policy Considerations
Courts repeatedly have recognized unmarried cohabitants as a
foreseeable class of plaintiffs.166 The Dillon v. Legg167 court acknowledged a court's legal obligation to “promote natural justice” when it
extended a cause of action to bystander plaintiffs.168 Following this
reasoning, the widespread increase and reality of unmarried
cohabitants would not make the extension of liability unfair.
Dunphy also used this reasoning to extend liability to what it referred to as an “eminently foreseeable but clearly discrete class of
potential plaintiffs.”169 One can reasonably foresee that individuals
who lack a familial relationship, but who have a stable, enduring,
substantial, and mutually supportive relationship, “will be especially vulnerable to emotional injury resulting from a tragedy befalling one of them.”170 Nevertheless, not all foreseeable risks give rise
to duty.171 Courts put great emphasis on public policy when deciding
whether to recognize a duty of care and a cause of action. However,
the policy justifications set forth by Justice Garibaldi contradict the
very reasons for recognizing negligent infliction of emotional distress
in the first place.172 The Dunphy court ap
164. See supra note 108 and accompanying text for a brief discussion of these policy
reasons.
165. See supra notes 142–43 and accompanying text.
166. Dunphy II, 642 A.2d at 377. Even Elden and Justice Garibaldi's dissent in
Dunphy II acknowledged unmarried cohabitants as a foreseeable class of plaintiffs. See
Elden, 758 P.2d at 586; Dunphy II, 642 A.2d at 380 (Garibaldi, J., dissenting).
167. 441 P.2d 912 (Cal. 1968). See supra notes 72–86 and accompanying text for a
discussion of Dillon.
168. Dillon, 441 P.2d at 914.
169. Dunphy II, 642 A.2d at 377.
170. Id.
171. See, e.g., Elden, 758 P.2d at 586 (although unmarried cohabitants are a foreseeable class of plaintiffs, policy reasons justify their exclusion); Tobin v. Grossman, 249
N.E.2d 419, 422–24 (N.Y. 1969), overruled by Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y.
1984) (policy reasons prevented mother from recovering for her emotional distress which
resulted from witnessing her two year old son's serious injuries).
172. See supra notes 144–60 and accompanying text for a discussion of Justice Gari-
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propriately refused to limit the scope of duty based on the policy
reasons articulated in Elden and advocated by the dissent.
The State's Interest in Marriage
Utilizing the reasoning in Elden, Justice Garibaldi suggested
that unmarried cohabitants should be treated differently than married couples.173 She accurately declared that New Jersey law distinguishes between married and unmarried couples in several
realms.174 “Thus, the legal distinction between married and unmarried cohabitants remains.”175 However, although New Jersey, as well
as other states, use marriage as the basis of legal distinction in some
areas of the law, one needs to ask whether the dissent's concern
regarding marriage is valid when confronted with a Dunphy issue.
The line of demarcation may be unjustly drawn when marriage
is used as the sole arbitrary factor to determine whether a duty
exists to an unmarried cohabitant.176 When courts utilize matrimony
as the primary basis for legal distinction, they should not unjustly
target unmarried individuals, but instead should seek to significantly further society's interest in the institution of marriage.177
Since the goal of tort law is to compensate victims, 178 there may be
situations in which competing policy interests should override a
legal distinction made between married and unmarried cohabitants.
At least one scholar has recognized the need to advance other policy
interests which deserve legal recognition, although conflict may
exist between them and traditional family settings.179
baldi's dissent in Dunphy II. See Cavanaugh, supra note 76, at 467. Whether Elden's
reasoning would eventually lead to abolishing this tort is beyond the scope of this Article.
173. Dunphy II, 642 A.2d at 382 (Garibaldi, J., dissenting).
174. Id. She noted that the New Jersey legislature abolished common-law marriage
in 1937. Id. Additionally, the areas of insurance law and workers' compensation treat
married couples differently. Id. In New Jersey, unmarried cohabitants also cannot recover alimony or inherit by intestate succession. Id. at 382–83. But see Elden, 758 P.2d
at 592 (Broussard, J., dissenting) (identifying areas of the law such as housing, family
relations, and credit where unmarried couples are recognized as equal to married couples).
175. Dunphy II, 642 A.2d at 382 (Garibaldi, J., dissenting).
176. Lefler, supra note 16, at 987.
177. See Elden, 758 P.2d at 592 (Broussard, J., dissenting).
178. KEETON ET AL., supra note 1, § 54, at 360–61.
179. See Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy — Balancing the Individual and Social Interests, 81 MICH. L. REV. 463, 561
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In Dunphy, Justice Garibaldi treated recovery for bystander
negligent infliction of emotional distress as if it derived from a marital contract.180 Given the alarming rate of divorce, as well as other
domestic concerns, it is suspect to equate marriage with a stable
familial arrangement.181 Furthermore, society's interest in marriage
will not be advanced by unreasonably assuming that housemates
will marry “in order to assure his or her legal standing in a future
personal injury action should that person have the [unlikely] misfortune of witnessing the serious injury of his or her spouse.”182 Unmarried cohabitants anticipate that the law will recognize the value and
emotions of their relationship.183 The increase in the number of people who cohabit justifies the need to recognize a realistic relationship in society.184 The Dunphy majority's “close, substantial, and enduring relationship” standard185 supports the same qualities which
should be found in marriage. Therefore, rather than a license, a
relationship's structure, emotions, and stability should form the
basis for recognizing a cognizable cause of action.186
Furthermore, had the Dunphy court adopted Elden's reasoning,
severe consequences would have resulted for same-sex couples.187 As
(1983) (citing welfare entitlements and employment rights affected by the state's preferential treatment of formal marriage).
180. Dunphy II, 642 A.2d at 382 (Garibaldi, J., dissenting).
181. See Philip S. Gutis, What Is a Family? Traditional Limits Are Being Redrawn,
N.Y. TIMES, August 31, 1989, at C1; Leslie Phillips, Family Ties: New Meanings; Cities
Recognizing Non-Traditional Living Arrangements, USA TODAY, July 12, 1989, at 3A, for
a discussion of how the traditional family setting has evolved over the years. In 1994,
17.4 million divorced people were living in the United States. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1995, No. 58, Marital Status of the
Population, by Sex, Race, and Hispanic Origin: 1970 to 1994.
182. Elden, 758 P.2d at 591 (Broussard, J., dissenting). Regardless, “[m]arriage
would maintain its preferential status since marrieds are presumed to be `closely related,'” while cohabitants have the burden of showing “that their relationship is equivalent in all relevant respects to a good marriage . . . .” Id. See infra notes 215–23 and
accompanying text.
183. See Elden, 758 P.2d at 591 (Broussard, J., dissenting).
184. See infra notes 198–200 and accompanying text for a statistical analysis of
unmarried cohabitants in the United States.
185. Dunphy II, 642 A.2d at 373.
186. See infra notes 209–14 and accompanying text for a discussion of how the substance of the relationship should override its form.
187. See Cavanaugh, supra note 76, at 468–69 (noting that a possible reason the
Elden court refused to recognize unmarried cohabitants as recognizable bystanders is
because same-sex couples would then be deserving of some of the same legal rights as
legally married couples). For an extensive discussion of how the law affects same-sex
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1115
same-sex couples are precluded from marrying,188 a bright-line distinction between married and unmarried couples would thwart recovery.189 Impeding recovery to couples who could not in any case
choose marriage does not advance society's interest in marriage.190
In contemporary society, same-sex relationships are foreseeable and
thus merit an analysis as to whether such relationships may be
characterized as “close, substantial, and enduring.” 191 In short, the
dissent's attempt to define recovery through marriage inevitably
would serve as a mechanism to deny an unfairly targeted group
recovery for genuine emotional distress.192
The Need to Limit Recovery
In her dissent, Justice Garibaldi additionally asserted that once
courts disregard marital status in recognizing a cause of action, “no
clear principle exists to limit liability.”193 Similarly, the California
Supreme Court feared that if courts failed to use marital status as a
limiting device, the legal consequences would generate an uncontrollable ripple.194 Anxiety partly lies in the belief that if courts fail
to draw an arbitrary bright-line distinguishing relationships, recovery would extend to all de facto relatives and friends.195
This argument fails for several reasons. First, if unlimited lia-
couples, see generally David Link, Comment, The Tie that Binds: Recognizing Privacy
and the Family Commitments of Same-Sex Couples, 23 LOYOLA L.A. L. REV. 1055 (1990).
188. But cf. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). In Baehr, the Hawaii Supreme Court held that the State of Hawaii would no longer be permitted to deny marriage licenses simply because both applicants are of the same sex. Id. However, the court
stopped short of granting same-sex couples the right to marry, as it found that the Constitution did not provide them with a fundamental right to do so. Id. at 57. The court
remanded the case for an evidentiary hearing to determine whether the statute furthered the state's compelling interest in marriage and whether it was narrowly drafted
so as to avoid an unnecessary abridgement of constitutional rights. Id.
189. See, e.g., Coon v. Josephs, 192 Cal. App. 3d 1269 (1987) (finding that bystander
plaintiff did not meet the “close relationship” requirement although the same-sex couple
were life-long, exclusive partners).
190. Elden, 758 P.2d at 592 n.2 (Broussard, J., dissenting).
191. Dunphy II, 642 A.2d at 373.
192. Whether this rule would disproportionately impact same-sex couples and thus
violate their 14th Amendment Constitutional rights is beyond the scope of this Article.
See supra note 188.
193. Dunphy II, 642 A.2d at 383 (Garibaldi, J., dissenting).
194. Elden, 758 P.2d at 588 (citing Tobin v. Grossman, 249 N.E.2d 419, 424 (N.Y.
1969)).
195. Dunphy II, 642 A.2d at 381–82 (Garibaldi, J., dissenting).
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bility is a sufficient justification for a court to prohibit unmarried
cohabitants from recovery, valid emotional injuries would remain
uncompensated.196 When a court focuses solely on the nature of the
legal relationship, it precludes foreseeable and valid claimants from
recovering. Moreover, if foreseeability becomes the focus, distinctions among injuries to other de facto groups become evident. The
commitment, love, and endurance found among engaged, unmarried
cohabitants is equally as genuine and serious as that found in a
marriage. Thus, the “principled distinction” amongst de facto groups
which Justice Garibaldi pursues is readily realized.197
Finally, unlimited liability should not serve as a basis to limit
the class of potential plaintiffs because unrelated bystanders are not
likely to file a great number of new claims.198 In 1994, 3,610,000
unmarried couples lived in the United States,199 as compared to
54,251,000 total married couples.200 Thus, approximately 6.24 couples out of 100 in the United States are unmarried cohabitants.
Denying valid claims to a minute percentage of the population does
not greatly further the judiciary's attempt to limit liability.201 Furthermore, since courts may presume that unrelated bystanders are
not sufficiently close to recover for their emotional injuries, the burden of showing that the degree of their relationship entitles them to
recover for their emotional injuries would ensure that claimants
would only file legitimate claims.202
196. The dissent acknowledged that an unmarried cohabitant may suffer the same
emotional distress at witnessing the death of her fiancé as would a married bystander
witnessing the death of her spouse. Id. at 380. See supra notes 144, 166 and accompanying text.
197. Id. at 381.
198. See infra notes 199–200 and accompanying text for a statistical analysis showing the unlikelihood of a flood of new cases to be brought before the courts. Professor
Bell has noted that only a trickle of new claims would arise because only those cases
which are valued greater than the cost of bringing the claim would be filed. See Peter A.
Bell, Reply to a Generous Critic, 36 U. FLA. L. REV. 437, 442–45 (1984).
199. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES:
1995, No. 60, Unmarried Couples, by Selected Characteristics: 1970 to 1994. An “unmarried couple” is defined as “two unrelated adults of the opposite sex sharing the same
household.” Id.
200. Id. at No. 61, Married Couples of Same or Mixed Races and Origins: 1970 to
1994.
201. Cf. Bulloch v. United States, 487 F. Supp. 1078, 1086–87 (D. N.J. 1980) (allowing an unmarried cohabitant's loss of consortium action to proceed).
202. See infra notes 215–23 and accompanying text for a discussion of the author's
suggestion of how a rebuttable presumption may help serve courts in ensuring that
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Burden on the Courts
The dissent also expressed concern that an intolerable burden
on courts would result if unmarried cohabitants are recognized as
bystander claimants.203 However, the minute number of new claims
which would result from unmarried cohabitants would not result in
such a burden.204 The Dunphy majority recognized that courts are
capable of deciding which claimants have a genuine and deserving
legal right to recover for their emotional distress.205 It compared loss
of consortium actions and found that a Dunphy type issue would
equally require a fact finder to scrutinize the quality and nature of a
relationship to assess damages in terms of the severity of the loss.206
Thus, a jury may also serve to find whether an unmarried relationship is close enough to justify recovery. Furthermore, “even if the
persons are married, [a] probing inquiry into the nature of their
relationship will nonetheless occur.”207 Very simply, the difficulty in
determining which unmarried cohabitants deserve to recover for
their emotional injuries does not justify a blanket rejection of valid
claims.208
B. Substance of Relationship Over Form
When courts exclusively focus on the legality of the relationship
rather than the nature, they threaten to stymie recovery for deserving victims. Rather than legal status, the emotional affection of any
kind of familial relationship should indicate whether the emotional
injury suffered is foreseeable.209 Similarly, failing to evaluate the
intimacy of an unmarried cohabitant relationship because of the
lack of legal status does not further the doctrine of foreseeability
fraudulent claims are impeded; see also Lefler, supra note 16, at 990.
203. Dunphy II, 642 A.2d at 381 (Garibaldi, J., dissenting).
204. See supra notes 198–200 and accompanying text for a statistical analysis of
unmarried cohabitants.
205. Dunphy II, 642 A.2d at 378.
206. Id.
207. Id. at 379.
208. Elden, 758 P.2d at 593 (Broussard, J., dissenting).
209. See Mobaldi v. Board of Regents, 55 Cal. App. 3d 573, 582 (1976) (finding that
foster mother could recover for emotional distress where foster parent-child relationship
existed with all of the characterizations of a natural parent-child relationship), disapproved by Elden v. Sheldon, 758 P.2d 582 (Cal. 1988).
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upon which Dillon is premised.210
Although a rebuttable presumption should exist when bystanders have a legally recognized relationship,211 mere reliance on legal
status, absent analysis, fails to reach the rational conclusion that
courts, which blindly bar recovery, presuppose. The Dillon court
required a close relationship, “as contrasted with the absence of any
relationship, or the presence of only a distant relationship” in determining whether a defendant should have reasonably foreseen the
plaintiff's emotional injury.212 Clearly, unmarried cohabitants should
have the opportunity to show a trier of fact that they share the same
qualities found among married couples. Furthermore, since at least
one court has used Dillon to extend recovery to a de facto parental
relationship,213 it is consistent to extend recovery to a de facto marital relationship.214 Courts should adhere to Dunphy's principle and
recognize that the substance of a relationship overrides the form.
C. An Alternative to Elden
This Article does not suggest that courts should ignore the important role that marriage plays in society. In many cases, a successful marriage is the centerpiece of a strong family unit. Society
expects a considerable degree of intimacy to be present in such legally recognized relationships.215 However, this Article does suggest
that courts need to evaluate an unmarried cohabitant's relationship
and afford an individual the opportunity to show that his or her
relationship parallels a marital one for purposes of tort liability
arising from negligent infliction of emotional distress. A progressive
interpretation of “marriage and family” would not denigrate their
210. Compare Drew v. Drake, 110 Cal. App. 3d 555 (1980) with Dillon v. Legg, 441
P.2d 912 (Cal. 1968).
211. See infra notes 215–23 and accompanying text.
212. Dillon, 441 P.2d at 920 (emphasis supplied).
213. See Mobaldi, 55 Cal. App. 3d at 581–82. In Mobaldi, the court interpreted
Dillon to allow a foster mother to recover for her emotional distress after observing the
defendant negligently administer a fatal dose of glucose solution to her foster son. Id. at
578. The court reasoned that since the foster child had been living with his foster family
since the age of five months and treated the plaintiff as his true mother, the relationship possessed “all of the incidents of parent and child except those flowing as a matter
of law . . . .” Id. at 583.
214. Unmarried cohabitants can be thought of as having a de facto marital relationship.
215. Burley, supra note 7, at 943.
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1119
importance in society.216 Thus, courts should not arbitrarily distinguish between the two classes of plaintiffs.
However, if courts are reluctant to treat both classes equally,
they may employ a presumption in favor of married couples. Therefore, as an alternative, this Article suggests that courts should afford married bystanders, who have suffered emotional distress as a
result of witnessing their spouse's negligent death or serious injury,
a rebuttable presumption in their favor suggesting that a close relationship exists. Accordingly, the defendant could present sufficient
evidence to overcome that presumption by showing that the bystander and direct victim217 lacked the intimacy found in a close relationship.218 Thereafter, the burden of persuasion would shift to the
plaintiff to show the trier of fact that the parties' relationship met
the “closely related” requirement found in cases following Dillon.
Conversely, if a couple simply cohabited, a rebuttable presumption would exist suggesting that their relationship did not meet
Dillon's close relationship requirement. As Justice Broussard's dissent in Elden suggests, the plaintiff would have the burden of presenting evidence to show that the couple's relationship is sufficiently
close to recover. For example, a plaintiff could utilize the following
factors to show whether they are “closely related”: 1) the duration of
the relationship and whether it was continuous; 2) how long they
cohabited; 3) whether they were engaged to be married at the time
of the accident; 4) whether the couple represented themselves as
husband and wife in public;219 5) whether the couple had married
since the accident; 6) the exclusivity of their sexual relationship; 7)
whether the couple had any children together or whether children
from a previous marriage lived in the household; 8) whether the
couple shared property and assets;220 9) whether the couple filed
joint or separate income tax returns; 10) if any life insurance pol-
216. Link, supra note 187, at 1107.
217. See supra notes 6 and 7 for a definition of the terms “direct victim” and “bystander,” respectively, as they are used in this Article.
218. Cf. Cavanaugh, supra note 76, at 468 (suggesting a rebuttable presumption in
favor of immediate family members, significant others, and persons living in the
plaintiff's household and as a member of the plaintiff's family for a specified period of
time).
219. Michael Burwell introduced Eileen Dunphy in public as his wife. Dunphy II,
642 A.2d at 373.
220. Eileen Dunphy shared a joint checking account and purchased an automobile
with Michael Burwell. Id.
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icies existed, whether the couple named each other as beneficiary;221
and, 11) “their emotional reliance on each other, the particulars of
their day to day relationship, and the manner in which they related
to each other in attending to life's mundane requirements.”222 However, in both situations the trier of fact would decide whether the
relationship presented meets Dillon's standard.223
VI. CONCLUSION
In 1968, the California Supreme Court created a progressive
approach in the area of negligent infliction of emotional distress
when it decided Dillon v. Legg. The court shifted the focus to the
foreseeability of the injury that bystanders suffer as a result of witnessing the death or serious injury of a loved one. Thereafter, in
Elden v. Sheldon, California limited the class of plaintiffs who could
recover for such injury by excluding unmarried cohabitants. The
court found that social policy reasons, including the state's interest
in marriage, the need to limit liability, and the burden on courts in
evaluating such a relationship justified limiting recovery.
Dunphy v. Gregor presented the New Jersey Supreme Court
with a similar situation. After a careful analysis, the Dunphy court
held that the policy reasons enunciated in Elden and advocated by
the dissent did not excuse precluding recovery to a clearly foreseeable class of plaintiffs. The court appropriately found that marriage
is not the exclusive form of a close relationship and that a trier of
fact is capable of finding what constitutes a sufficiently close relationship.
Dunphy suggests that injuries identifiable within the class of
unmarried cohabitants are sufficiently foreseeable to create a duty
of care. If a court is unwilling to consider unmarried couples in the
same light as married couples, it could follow a rather simple and
manageable approach which would provide unmarried cohabitants
an opportunity to show that their relationship is sufficiently analo221. Both individuals also purchased life insurance policies, each naming the other
as beneficiary. Id.
222. Id. at 378 (citing Dunphy v. Gregor I, 617 A.2d 1248, 1255 (N.J. Super. Ct.
App. Div. 1992)).
By applying these factors, courts would operate to prevent friends who simply cohabited from recovery.
223. This Article does not suggest that this analysis must simply be restricted to
unmarried cohabitants. However, a discussion of other relationships is beyond its scope.
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gous to a marital one and, thus, meets the Dillon requirement. The
factors set forth in the Dunphy opinion, as well as others suggested
by the author, sufficiently define parameters by which a trier of fact
may decide the issue without compromising the importance of marriage in society. In other words,
marriage would maintain its preferential status since married persons are presumed to be “closely related” for the purposes of Dillon.
Rather, the proposal is merely to elevate unmarried cohabitants to
a neutral status by permitting them to prove on a case-by-case
basis that their relationship is equivalent in all relevant respects to
a good marriage and equally deserving of legal protection.224
224. Elden v. Sheldon, 758 P.2d 582, 591 (Cal. 1988) (Broussard, J., dissenting).